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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 547-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE WELSH AFFAIRS COMMITTEE
DRAFT COMMISSIONER FOR OLDER PEOPLE (WALES) BILL
Tuesday 5 April 2005 MR DON TOUHIG MP, MR JOHN WILLIAMS, MS AMANDA JONES and MS ELIZABETH LOCKWOOD Evidence heard in Public Questions 1 - 38
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Welsh Affairs Committee on Tuesday 5 April 2005 Members present Mr Martyn Jones, in the Chair Mr Martin Caton Mr Huw Edwards Dr Hywel Francis Julie Morgan Mrs Betty Williiams ________________ Witnesses: Mr Don Touhig, a Member of Parliament, Parliamentary Under-Secretary of State for Wales, Mr John Williams, Deputy Director, Finance Director and Strategic Policy Adviser, Wales Office, Ms Amanda Jones, Assembly Counsel (working under a Section 41 agreement to the Wales Office), and Ms Elizabeth Lockwood, Policy Adviser, Older Persons & Long-Term Care Policy Division, Wales Office, examined. Q1 Chairman: Welcome, Minister, and colleagues. Before we start, apparently there is an Election in the offing, as I understand, and this is of course why we are not meeting you jointly with the Assembly Committee, at least as far as this Parliament is concerned we are not, and consequently it would be quite useful if you could give us a brief rundown and background to the Bill before we start the questions. Before that if you could introduce yourself and your colleagues. Mr Touhig: Thank you for asking us along this morning, Chairman. I thought all those cameras and helicopters were to watch us walking down Whitehall but there must be somebody else coming down! On my right is John Williams, who is the Director of Finance at the Wales Office. On my left is Liz Lockwood, who is the policy lead in the Assembly who is dealing with this particular draft Bill, and Amanda Jones, who is the Assembly lawyer. We are available to answer any of the questions that you may have for us this morning. Can I just set the scene about what we have in mind with the Bill. Wales has a higher concentration of older people than the rest of the United Kingdom and the rural areas of Wales have a higher concentration of older people than urban areas. Over the next 20 years or so the numbers of people over 60 in Wales will increase to nearly one‑third of the population and the numbers over 85 will increase significantly. My colleagues in the Assembly have a strategy for older people, developed after extensive consultation, and it is consistent with the UN Principles on Ageing. The proposal for a Commissioner for Older People is the next logical step and will give a firm focus on promoting the values of independence and quality and choice in old age. 93% of people consulted in Wales favoured the establishment of a Commissioner and 84% agreed with the functions of the proposed office. The draft Bill establishes a Commissioner for Older People that has the powers and duties at least comparable to the Children's Commissioner in Wales and the Commissioner will play an important part in tackling age discrimination, promoting positive images of aging, and giving older people a stronger voice in society. The Commissioner will speak up on behalf of older people and be their champion. He or she will help ensure that older people themselves can influence the way in which important public services are managed and delivered in Wales to better meet their needs. The Commissioner would also be able to assist older people in making complaints and representations. The Assembly will be able to refer matters to the Commissioner for consideration but would not be able to require the Commissioner to act on any of the referrals. The Commissioner would have a range of functions and these include: to promote awareness of the interests of older people in Wales; to encourage good practice in the treatment of older people in Wales; to promote the provision of opportunities for and the elimination of discrimination against older people in Wales; and to keep under review the adequacy and effectiveness of law affecting the interests of older people in Wales. The Commissioner would be able to examine individual cases and could support individuals in taking court action in certain circumstances. He or she may decide to restrict this power to instances where other avenues of redress have been exhausted and wider matters of principle are involved, in the same way that the Children's Commissioner does now. Other powers would include the discretion to undertake research, to issue guidance on best practice, and to make reports to the Assembly on the exercise of his or her functions. After careful consideration of all of the issues and options, the draft Bill proposes a lower age limit of 60 as within the Commissioner's remit. We believe that this would be consistent with the age benchmarks already in legislation and include those people who are entitled from aged 60 to receive winter fuel and pension credit benefits, women aged 60-plus who will continue to receive state pension until 2013, as well as aligning with the Assembly's free swimming and bus pass schemes which start at age 60. I believe this is an important new draft Bill that has attracted a great deal of support and interest in Wales from people right across the age spectrum and I look forward to discussing it with you, receiving your report in due course and promoting this Bill in Parliament. Q2 Chairman: Thank you, Minister. The aims seem wholly commendable but what, if as rumoured an Election does go ahead today, are the plans for the Bill? Mr Touhig: We have prepared the draft Bill working closely with our colleagues in the Assembly and promoting it on the assumption that there will be a full parliamentary session. It is not possible really to make an assumption there might be an Election and how we could time the scrutiny of it so we have assumed that there would be a full parliamentary session. Should an Election be called today then that will obviously interrupt your proceedings. We have sent out over 2,000 letters of consultation to groups all across Wales. We have set a deadline of mid‑June for their responses. So we will get their responses in. You will continue with your scrutiny while Parliament sits and I assume you will make arrangements post an Election, assuming the Government is returned and the Bill is further considered as draft, to look at how you would respond to the draft Bill. Of course, if the Election is held now, then I cannot say what would be in the Queen's Speech if Labour were to win the Election, but we would have more than a year for the parliamentary session so it does extend the timescale a little bit to enable you to consider your pre-legislative scrutiny and for my colleagues in the Assembly if they wish to do the same. It has always been our ambition by the autumn after the conference season to say, "Right, here is the final Bill," and be able to go to my colleague, the Secretary of State, wearing his other hat as Leader of the House and say, "We have got a Bill for Wales and we would like it in the programme." Q3 Chairman: One of the problems would be of course that the Committee would not be established straightaway so we would have to take that into account well if we are here and you if you are the Minister would have to take that into account. Has that been factored in? You quite rightly said of course that it would be a longer parliamentary year so that probably would help in that regard. Mr Touhig: If I could take a stab at this. I understand that perhaps if the Election is held and the Government is returned and decides to press ahead with the scrutiny of this Bill, then you would be reconstituted as a Committee some time before Parliament rises for the summer. I do not know whether that is a fact but that is what I am given to understand. Then you would obviously have to take a judgment as to whether you wanted to continue scrutiny during the recess. If not then Parliament would return and at the moment I think the proposal is some time in October and then hopefully you might complete your considerations by some time in October allowing perhaps as we have in the past for debate at the Welsh Grand if that is what is intended and the final Bill published towards the autumn, November-ish, thereabouts, so that if there were a slot in the legislative programme for the incoming Government hopefully we could get that in perhaps at the turn of the year into the new year to complete all its stages in time for the recess next year. Q4 Chairman: Lots of fingers to be crossed? Mr Touhig: Lots of fingers to be crossed. Q5 Chairman: Also this Bill has been produced as a draft Bill commendably early in the parliamentary year. We have had problems in the past fitting in our pre-legislative scrutiny. Is this the first of many being produced this early in the year? Mr Touhig: You may recall that the Assembly made this one of its priority bids for legislation to Government some while ago. I pay tribute to officials and ministers in the Assembly because when we found we had an opportunity to publish a draft Bill, they pulled out all the stops and worked in an extraordinarily short period of time to fill in all the detail, as did Parliamentary Counsel who actually drafted it. A great deal of extra work and a great deal of oil was burnt at midnight in order to get it to this stage which meant there was an opportunity there and the Secretary of State was keen that if we could get this draft Bill published in this session he wanted to do that, and our colleagues in the Assembly wanted the same. Chairman: Thank you. Dr Francis? Q6 Dr Francis: Good morning. Before we get into the detail of the draft Bill, if I could ask you some questions about the other Bills. Can you tell us what is the likelihood that no Welsh legislation will be passed in this session? Mr Touhig: As you know, we published two Bills for this session - the Ombudsman Bill and the Transport Bill - and, as I say, we were delighted that we had the chance to publish this Bill in draft. The Ombudsman Bill completed all its stages in the Lords and got a second reading in the Commons yesterday. If there is an Election I would anticipate we might be around a little late either Wednesday night or Thursday night where I would hope if we can get agreement from the opposition parties that the Ombudsman Bill might be secured as part of the wash‑up process. We have certainly had informal discussions to try to secure the support of the opposition to that effect and it would mean taking the Bill through all its stages - committee, report and third reading ‑ on the floor of the House perhaps in the middle of the night, I do not know, but we will be up for it if we can get that Bill on the statute book before parliament is dissolved. The Transport Bill, on the other hand, which I know concerned Mrs Williams last night when she spoke in the Welsh Day Debate, has not had a chance to get a second reading. I have indicated to the Leader of the House that if an Election is held and the Government is returned then if he as Leader were looking for a Bill to introduce early in the next session the Transport Bill is ready. It has had all the pre-leg scrutiny. It is ready to go. I have discussed it with my colleague minister in the Assembly and he strongly supports that. Although the Assembly has issued a new list of bids for legislation, if we could get this one running, then it would very much depend upon Parliament and the business managers of the Government in a new session, but the Bill is ready to go so we would hope that that might be included early in the Queen's Speech. Then if we could continue the pre-leg of this one and introduce that one in the next session that would be our hope and ambition. Q7 Dr Francis: Would you say it is unfair to suggest that Welsh legislation is first to be jettisoned within any restriction of the parliamentary year then? Mr Touhig: Yes, I pay tribute to the Secretary of State ‑ and I have got to be careful here because people will say it is because he is Leader - who has worked tremendously hard to ensure that we did get a slot for the second reading of the Ombudsman Bill. There was a strong case for it. It had completed all its stages in the Lords and so on. It was very much down to his efforts in talking to other colleagues that we have ensured that the Ombudsman Bill has had its run and hopefully, as I say, we will complete it. No, it is not a case of Welsh legislation being jettisoned because the value of the pre-leg scrutiny means that a lot of the consideration and comment, a lot of the sting in some senses in terms of argument in committee when you take a Bill through has already been put aside, fears assuaged, concerns set to rest by the process. I think pre-leg has assisted us in accelerating more Welsh legislation onto the statute book. Dr Francis: Thank you. Q8 Mrs Williiams: We have had a copy of your press release concerning this draft Bill and in that press release you stated that the Commissioner for Older People will "champion their rights and dignity and protect them from discrimination and prejudice". How will he or she be able to do that in practice? Mr Touhig: The Commissioner will have particular functions that will empower him or her to promote the interests of older people in Wales, tackle age discrimination, encourage good practice and treatment of older people, and review the adequacy and effectiveness of law affecting the interests of older people. The points I made in my opening remarks. These powers provide the basis of the role and remit of the Commissioner and are exercisable only in relation to devolved matters. To prevent duplication the Commissioner cannot discharge a function that is also dischargeable under statute by another Commissioner or Ombudsman. Additionally, though, the Commissioner will have the power to make representations to the Assembly about any matter devolved or non‑devolved relating to the interests of people in Wales. That is the situation that exists now with the Children's Commissioner and that is a power that we would want the Commissioner for Older People to have. In undertaking his or her functions and considering what constitutes the interests of older people, the Commissioner will have regard to the United Nations' Principles for Older Persons, and I think that is important. Specifically, the Commissioner will also have powers of assistance, examination, review of functions and review of monitoring arrangements so it is fairly widespread and of course, as you appreciate, if Parliament were to enact this the Assembly through secondary legislation can make certain regulations that will underpin the effectiveness of the work of the Commissioner, so I do believe that this is a thoroughly good opportunity to protect and defend the rights of older people and to ensure that in old age they have dignity and respect and they are listened to. I am President of the National Pensioners Association in Wales and if I did not get some of these things right I will be given GBH, I can tell you, by the executive committee of the National Pensioners Association for Wales whom I meet frequently. Q9 Julie Morgan: Good morning. You say how it will relate to the Ombudsman. This afternoon we are debating the Equality Bill which is going to set up an Equality and Human Rights Commission and obviously age is going to be one of the areas that comes into that. I do not know whether this has been thought of yet because this Bill is only having its second reading today. How would this person relate to that Equality and Human Rights Commission? Mr Touhig: As I have said, the whole of the principles underpinning the proposed draft legislation are based on the UN Principles for Older People that were adopted by the General Assembly I think in 1991 and clearly there would be a cross reference. The Commissioner will work on matters relating to areas devolved into Wales but if there are any areas where there should be some sort of working relationship then that will develop. I have no doubt that should the Equality Bill, which will get a second reading today, progress anywhere after then this matter will obviously form part of any discussions. The interesting and important thing about our pre-leg is that if it does throw up something like this issue you could perhaps take part in the debate today and say, hang on, that could affect the draft Bill for the Older People's Commissioner for Wales and that again will inform any decision that we might make on the final Bill. Q10 Julie Morgan: That was one of the issues I was hoping to raise in the debate today and obviously at a very early stage because in this Bill the Commissioner will promote awareness of the interests of older people in Wales and I think one of the key things about the Commission will be to promote the rights of older people. There is a crossover in the functions of the two bodies so I think it is important that we do try to decide how they relate to each other at an early stage. Mr Touhig: I do not know whether you want to say anything? Ms Lockwood: Yes, I think just to confirm that we have thought about that and indeed we have had membership from Wales on the task force that has drawn up the proposals in the first place. I am sure you are aware of that. We do feel, however, that the remit of the CHR is likely to focus on employment rights to do with age and that therefore that would exclude probably a high proportion of older people in Wales because they are not really part of the workforce at the moment, they are older than that. Mr Touhig: I hope that is helpful to give you a feel. Q11 Julie Morgan: Those are your first feelings about it. Thank you. The questions I was going to ask were about the non‑devolved issues and they are the same sort of questions we asked about the Children's Commissioner and a lot of the debate about the Children Bill did centre on how it was going to operate in relation to the non‑devolved matters so this is really another run with the same sort of questions. For example, the Older Persons Commissioner in Wales will not be able to consider pensions and welfare payments, which are obviously very closely bound up with the whole of the rest of their lives. What sort of consideration has been given to that element? Mr Touhig: I think that is a very big area and important area. We could be rehearsing the discussions we had about the powers in the Children Bill but there is nothing under our proposals preventing the Older People's Commissioner from looking into the matters you raise. He or she would make representations to the Assembly and the Assembly would make a judgment whether it felt that it needed to take these matters up with the respective department here in London. With the Children's Commissioner, the Secretary of State and I have offered to Peter Clarke that if there are any matters that impinge upon reserved areas that he feels should be brought to the attention of ministers or departments here in London then feel free to speak to the Secretary of State or myself and meet us and we will undertake to take up these matters. We have already done so in one case. I know this caused a lot of concern and discussion at the time when we talked about the Children Bill, but in practice there have not been a great many instances where the Children's Commissioner has been inhibited in any way from carrying out his functions and we certainly have no intention in this piece of legislation to put in any barriers and we hope it would work exactly the same as with the Children's Commissioner. Q12 Julie Morgan: So access to ministers would be in an informal way rather than being in the draft Bill? Mr Touhig: It is not in the draft Bill. The Government has made it clear, as it did with the Children Bill, that matters which are reserved remain the responsibility of ministers here in London and ministers here are answerable to Parliament and thereby accountable for those matters. We did not think it was appropriate for Commissioners answerable to devolved administrations to be able to investigate matters which were the responsibility of ministers here in London. However, I want to make it clear that with the Children's Commissioner he is able to look at any matter and ask the Assembly if he or she feels there is an issue that the Government needs to take account of to raise it. As I say, the offer was made to the Children's Commissioner that the Secretary of State was happy to take things up. In the wider context can I say this: I recognise there are going to be contrary views. After you deliberate you might have a contrary view, as you did over the issue in the Children Bill. Of course, I will be having discussions with my colleague ministers and the Assembly ministers about the draft Bill and you will produce a report at some stage and others will comment on the draft Bill. That information and those reports will inform our decisions when we produce the final Bill. I think these matters are open to discussion. I have painted the picture of where the Government line is at the moment and I do not anticipate that that would move significantly in any way but we do think it is important as part of the pre-leg ‑ and that is the whole purpose of a draft Bill - that you are going to get contrary views to what we have got in the Bill, and we need to consider that, working with colleague ministers in the Assembly before we produce the final Bill. Q13 Julie Morgan: And the Explanatory Notes to the draft Bill state that the Commissioner would be able to "keep under review the adequacy and effectiveness of law affecting the interests of older people in Wales". How would that actually happen if he or she is excluded from considering any legislation passed and administered by the UK Government or are you saying they are not excluded? Mr Touhig: As with the Children's Commissioner, the intention is that the Older People's Commissioner will be able to look at any matter which he or she thinks impacts on the quality of life or issues that I have outlined affecting older people in Wales. He or she would then if it were a devolved matter work directly to the Assembly and say there is an issue that ought to be looked at. If it is a reserved matter he or she would go to the Assembly and say, "I have come across this matter (let's say affecting pensions or some such thing) there is a problem and I find there is a failure of the system somewhere here. Would you raise that with the respective department in Whitehall?" And then the Assembly will take a judgment on whether it should or whether it should not. As I say, the Secretary of State has made it clear to the existing Children's Commissioner that our door is open if there are matters that he feels we need to bring to the attention of other ministers here. If I recall, we amended the legislation on the Children's Commissioner in order to give that power to look at any matter -- Q14 Julie Morgan: -- - Yes you did, that is right. Mr Touhig: --- when we did the Bill some years ago. So we are not seeking to put any difficulties in the way there. Operationally it seems to work. We are not aware, Chairman, of any serious problems that exist at the moment with the Children's Commissioner that we have not been able to resolve and I would hope that the same would apply now with the Older People's Commissioner, but again it is a draft Bill and people will have different views to what we put in the Bill and we will have to consider those views before we produce a final Bill. Q15 Mr Caton: Can we move on to an apparent overlap with the role of the Public Services Ombudsman that you have already mentioned, Minister. The Older People's Commissioner will have powers over health and housing and can take up complaints in these areas. However, there will also be a Public Services Ombudsman for Wales. What form of health and housing complaints could the Older People's Commissioner consider that could not be considered by the other ombudsman? Mr Touhig: The draft Bill makes provisions under clause 15 and prevents the Commissioner from discharging a function that is also dischargeable under statute by another prescribed person like a Commissioner or Ombudsman. He would not be able to look into areas where Parliament has already decided that that is the orbit of that particular Ombudsman and so on. In fact, it is intended that working arrangements between the Commissioner and other bodies operating in the same sphere ‑ and there is bound to be an overlap as we have seen on the Children Bill ‑ they should be underpinned by a working level memorandum of understanding setting out their respective roles. This is in line with the operation of the Children's Commissioner in Wales. If an element of a complaint falls within the remit of another Commissioner or Ombudsman, for example the Public Services Ombudsman, the Commissioner for Older People will transfer the element of that complaint that relates to maladministration to the Ombudsman and could assist the older person in pursuing that complaint through the existing complaints procedure. So if it was not really within the remit of the Older People's Commissioner but an Ombudsman matter, it would refer it to the Ombudsman but the Commissioner should still give that older person help and assistance in taking that matter to the Ombudsman and getting it investigated. There will be a degree of overlap but we have found, as we did on various health matters working closely with colleagues in Cardiff, that the memorandum of understanding has provided a good basis on various health matters like CHI and the Health Service Inspection Unit in Wales and that it can be made to work very effectively because there will be areas where there will be considerable overlap. Q16 Mrs Williiams: I would like to ask a question on clause 8. Clause 8 states that "to a person who has been an older person in Wales includes a person who has ceased to be an older person in Wales before this section comes into force." Does this mean that the Commissioner can champion the case of Welsh older people who reside outside of Wales? Is that restricted to their time in Wales or can he continue to represent them while they are in England? Mr Touhig: After consideration of all the issues and options, the draft Bill proposed, as I said, the lower age limit in the definition of older people as 60 and over, and it corresponds to the various benchmarks that I referred to. The Bill contains provision for the Commissioner in connection with his powers of assistance (clause 8) and the examination of cases (clause 9) to help those who have been an older person in Wales but are no longer in Wales as well as those who were older people Wales at the time when the Bill came into force. This would enable the Commissioner to help those who may have moved away but did experience problems with a service while they were resident in Wales. If someone who has had a problem with the service when they lived in Wales but has moved outside Wales, the Commissioner would be in a position to look at that matter. Also in connection with his or her powers of examination it would be for him or her to consider details relating to individuals who have since passed away but whose cases and experience have come to light and in his consideration merit examination. Someone might have died and there may be an issue in terms of the care provision, whatever it may be, within Wales and the Commissioner would be in a position to look at these matters. Q17 Mrs Williiams: Can you remind me again which clause is the one you referred to if a person has died? Mr Touhig: Clause 9(1). "Regulations may make provision for examination by the Commissioner of the cases of particular persons who are or have been older people in Wales in connection with the Commissioner's functions under the Act." That would permit him to do that. Q18 Mr Edwards: Can I ask about financial support. Clause 8(4) states that the Commissioner will be able to provide financial assistance to older people. Will this include financial assistance for professional representation and how will that financial assistance be determined? Would you envisage it would be means tested? Mr Touhig: The Assembly will provide the Commissioner's funding and will negotiate with the Commissioner a budget and forward work programme on an annual basis. The cost of financial support will be met from within the Commissioner's budget. In setting his forward work programme and budget, a discrete resource will need to be identified for meeting the costs of financial support and assistance. However, the Commissioner will need to be selective and consider cases in which there are wider matters of concern at stake or where precedents are being set. We would not envisage that this would present a significant case load for the Commissioner. This will be an operational matter for the Commissioner to consider once appointed. By secondary legislation the Assembly will make regulations in which it will then set out the criteria for giving support and considering cases and set out a series of guidelines in which people can then understand what they can apply for and what they can gain in support. However, it is the intention that the Commissioner will be able, within the budget to be agreed and determined, to give financial support if someone feels that they need to take some legal action. If the Commission supports that they should take some legal action the Commission will be in a position to support that. It will be, really, a matter for the Assembly to determine the regulations by which the Commissioner would work. Q19 Mr Edwards: The Explanatory Notes of the Bill say that in the first year the costs will be £1.5 million. Would you envisage that some financial support will come within that? Mr Touhig: At this stage and before we know the extent of the role and responsibilities of the Commissioner it is not possible to give a detailed breakdown of the costs. The estimated costs you have got in the Explanatory Notes are based on our knowledge and experience of running the Office of the Children's Commissioner in Wales, and the breakdown of the costs relating to the Children's Commissioner is provided each year in his annual report. In the most recent estimates of expenditure for 04/05, in which there is a predicated budget of £1.6 million, of which £134,000 is programme costs and £1.2 million organisational costs, there is also funding put aside for social examination (?). The costs of assistance are included within the estimated costs of the Commissioner's office. The two additional Assembly posts are based on experience in similar areas where some input at middle and junior management level is required to act as government liaison with the Office of the Commissioner. In practice, of course, these may well not be full-time posts but at this stage until we finalise the exact details of the responsibilities of the Commissioner the budget is set there and is more of a guesstimate than anything that we could be firm on. Mr Williams: It is a best guess estimate, but the work of the Children's Commissioner is regarded as relatively analogous to the sort of work the Older People's Commissioner will be doing and, therefore, that was seen as the best bench mark that we had to hand to make an estimate of the costs of the Older People's Commissioner. Q20 Mr Edwards: What if the Older People's Commissioner is overwhelmed with work? Mr Touhig: The view is that he will not be overwhelmed with work but you cannot be absolutely certain. I appreciate the point you make is a valid point but in setting the budget and in setting the criteria by which an older person can apply to the Commissioner for support or assistance in, perhaps, taking a legal matter forward, the Assembly will set down the criteria. I cannot say whether it is intended that that is to be means tested at this stage, or on what basis it is going to be raised; it is one of those grey areas, Mr Edwards, where if this were a piece of legislation which would give powers to a Minister here, when we take it through its Committee stages in the Commons the Committee would demand to know: "What are the regulation powers you are going to give the Minister?" We could do that, in these circumstances, but then that impinges upon the right of the Assembly to make secondary legislation. So it is really asking you to accept that the Assembly does have the power to make these regulations, which is a fact, and should this Bill progress and we get into Committee then what has usually happened in the past, in order to rightly answer Parliamentarians' questions about how the Assembly will exercise its powers without impinging upon the Assembly's right to make the secondary legislation, is there has usually been an exchange of letters between the Minister in the Wales Office and the Assembly Minister, and the Assembly Minister has given the indication of how he or she would intend to use those powers. It is a difficult area because, otherwise, if we are not careful, this place will seek to make secondary legislation which, under the Government of Wales Act, the Assembly has the right to do. Mr Edwards: Thank you for that clarification. Q21 Chairman: You have included a clause which can require an individual to repay that financial assistance. Is there any particular reason why you have done that? Ms Jones: That clause is there so that the Commissioner, if he wishes, has the power to attach a condition to the assistance. Q22 Chairman: It would be a condition? It would not be sort of just dropped on the older person afterwards? Ms Jones: No, the grant would be subject to that condition. Ms Lockwood: It could, for instance, set out that if people were to win compensation they might be expected to make a contribution. Q23 Mr Caton: The Explanatory Notes to the draft Bill set out the need for two additional posts in the Welsh Assembly Government. What role will be carried out by the people who fill those posts? Ms Lockwood: I think it is envisaged they will, essentially, be sponsorship roles. For instance, when the annual report was submitted and the estimate of the budget was submitted there would need to be some kind of process of assessment of how that might sit with the other Assembly priorities, how well-founded that was, and it has been a judgment process. Also, obviously, the initial functions of helping to set up the office; perhaps helping with practical arrangements and helping with things like the memorandum of understanding. Q24 Mr Caton: Would the costs of those two posts come out of the Commissioner's budget or be funded directly by the Assembly separately? Mr Touhig: The costs are included within the estimated budget of the Commissioner's Office, yes. It is included in the budget, at the moment. That is the intention, at the moment. Q25 Julie Morgan: When you talk about setting up the post, the Children's Commissioner post attracted a lot of interest because children were very much involved in the whole process and were there deciding who was the Children's Commissioner. Have we got the same built-in for the appointment of the Older People's Commissioner? Ms Lockwood: That is something that came back very strongly in the consultation that we did on the advisory group report; that older people very much wanted to be involved and they made a range of suggestions for how we might possibly do that. Q26 Julie Morgan: So that is something that one of these posts would look at? Ms Lockwood: Yes, I think so. Mr Touhig: We would welcome any comments the Committee might have to guide us when we prepare the final Bill. Ms Lockwood: I think that would be something that would be set out in regulations. Q27 Mrs Williams: You mentioned earlier in your introduction, Minister, the cross-border issues. Clause 9(2)(b) excludes the Commissioner from examining cases relating to a service which is, is proposed to be, or has failed to be, provided outside Wales. How will this affect older people on the Wales/England border? Mr Touhig: If I can, Mr Chairman, just give a bit of a detailed response to the question put by Mrs Williams; in fact the pre-leg has already thrown up a little glitch that we have got and we appreciate that shows the value of pre-leg. For English people accessing services in Wales the draft Bill defines older people as a person aged 60 or over who satisfies one of a number of criteria, including being a person in respect of whom services are provided in Wales, or on behalf of, under an arrangement with prescribed bodies. This means that an older English person accessing services in Wales would have the same access to the Commissioner as a Welsh older person accessing services in Wales. The Bill provides for the Commissioner to provide assistance to a relevant older person in making a complaint or representation to or in respect of any regulated services provided in Wales. This will ensure that an older person who was ordinarily resident in Wales and placed for care or treatment in Wales could seek help from the Commissioner. For an older person who was ordinarily resident in Wales but placed in care or treatment by a Welsh local authority or a Welsh NHS body in England, the Commissioner would not have the power to assist in relation to the service provided in England to investigate a complaint. However, the intent is that the Commissioner would be able to investigate Welsh local authorities or Welsh NHS bodies that had placed a person for care or treatment in England. Therefore, if the contract under which they made the placement in England stipulated a minimum level of service provision, for instance, and the complaint or representation showed that this had not been achieved, then the body responsible for making the placement would be able to take that up with the service provider in England. Alternatively, if the contract did not stipulate minimum levels of service provision then that would be a matter for the Welsh body making the placement to address. In both these cases - the examples I have given you - the Commissioner would be able to provide effective assistance even without being able to investigate the service provider in England. In considering this wider question, it has become clear, Mr Chairman, that the Bill as it stands at the moment is not crystal clear about our intention. So the pre-leg scrutiny has already thrown that up and brought it to our attention, so we intend to refine the Bill before it is finally introduced to take account of that. The border, of course, is still the border but England and Wales are not separate countries and we do not wish to do anything that may hinder the potential use of services on either side of the border where those arrangements may be the simplest, the easiest and most efficient. Nevertheless, we do need to recognise that services that are provided in England are the responsibility of the Government and service providers and not the Assembly, and as such it would not be appropriate for the Commissioner established at the request of and for the Assembly to have power to investigate matters which are the responsibility not of the Assembly but of providers in England. We think that is a pragmatic way. Clearly, there is a glitch in the Bill at the moment, which we have to take account of because it is our intention that if someone from Wales is placed in care provision in England and there is a failure, then the Commissioner should have the right to investigate the decision of the organisations involved in actually making that placement. So there is an opportunity there not to investigate a provider in England but to investigate those who commissioned the provision of that service. Q28 Julie Morgan: The way I read it, it seemed to me that there was a definite weakness in the way the Bill was drafted. I dealt with a case recently where people from Wales have placements in England on religious grounds - Catholic homes and so on - over the border beyond Chester, and they would fall into this category. So I am pleased that the Minister is recognising there is a definite weakness there and it is being addressed. Mr Touhig: I do not know whether the Prime Minister has gone to the Palace, if he is going to the Palace, but I can admit at the moment that governments do, occasionally, get it wrong, but we must not say that if the election ---- Chairman: I can tell you he has gone to the Palace, but it may be for a cup of tea! Q29 Mrs Williams: And Welsh cakes! I have another question under the same heading. Welsh older people who are receiving services from providers in England (and we have just touched upon that) will not be represented by the Welsh Commissioner, but an English person who receives Welsh services could be represented. Does that not strike you as faintly ridiculous, or do you feel we have covered that point in what you have just said? Mr Touhig: I hope, perhaps, I have explained how we are going to try and tackle that. Clearly, someone who is getting a service in Wales should have access to the Commissioner. We recognise that if a person is getting a service in England the Commissioner should have the opportunity to investigate - in matters where there is a problem - the body that has actually placed that person in the care provision in England. Q30 Chairman: This is one of the benefits of pre-legislative scrutiny. Mr Touhig: Indeed. Q31 Dr Francis: If we can turn to the Deputy Commissioner now. In your evidence to us on the Public Services Ombudsman Bill you argued that you did not wish to prescribe the need for deputies on the face of the Bill because you wished the Bill to have the greatest possible flexibility. What is different about the Older People's Commissioner that it requires a statutory duty to appoint a deputy? Mr Touhig: I think this has arisen from the various discussions that our colleagues in the Assembly have had as to the need in this particular case. Is that right? Ms Lockwood: I think so. Really, we had looked at the Children's Commissioner and seen that that was a fairly effective model, and so we followed that. If you feel there are issues about the Public Services Ombudsman that we should take on board then we are happy to hear about that, but I think the reason it is in here is that we felt that there should be someone else there who was available to take on the functions of the Commissioner if there was some reason why the Commissioner himself or herself might be able to do that. Mr Touhig: We have modelled a lot of this on the Children's Commissioner in Wales. I am sure you will have met the Commissioner and the Deputy, and it is an effective team. As my father would say: "If it ain't broke, don't mend it", and it does work. So we think this is a good model. I think the circumstances are quite different so far as the Ombudsman is concerned, but here we felt there was a strong case. Dr Francis: I think we all agree the Children's Commissioner is a good model. Q32 Mr Edwards: On to higher education. Schedule 2 states that the responsibility for higher education is split between the Government and the National Assembly. How do you think the Commissioner will negotiate that split in practice? Mr Touhig: The intent of the Bill is for the Commissioner to have the power to investigate and assist on any matter, and to make representations to the Assembly. Where he may be pursuing a matter where there are split responsibilities he can make representations to the Assembly, who are able to respond as they consider appropriate in areas which are the responsibility of government. We think that this makes sense. In Schedule 2 we do list the various bodies on page 19 that will come under the Commissioner's orbit and which he will be able to investigate. We take the view that there will be an overlap on some of these because there is a split in responsibility and sometimes the Government does something the Assembly does, but we have listed these because we think that this is the appropriate list in terms of bodies that are delivering services in Wales, and the Commissioner should have the opportunity to look at any actions by these bodies that affect older people. Some people say: "Should we include older people in education?" Why not? The University of Third Age is fantastic. I have got someone in my constituency who is 72 and just got his degree and is now starting A-level French - a man who went down the pit at 14. Q33 Mr Edwards: The Open University might be another example where there is a high proportion of older people studying. Mr Touhig: Indeed. Q34 Chairman: Just a couple more questions, Minister. On that list in Schedule 2 and 3 the National Assembly and the Welsh Assembly Government are excluded but there is a slight contradiction because the Welsh Development Agency is included, which is now part of the Welsh Assembly Government. Ms Jones: They are excluded from the list but they are not excluded from the remit of the Commissioner because they are dealt with in the substantive sections in the Bill. Q35 Chairman: That explains that. Will there be an age limit on the appointment? Mr Touhig: I would hope not. In a previous incarnation I worked 27 years in newspapers and publishing and ran one of the groups within our company, and I fell out with the group managing director because I appointed as a deputy sales manager a woman over 60. She was fantastic and she could do the job, and she was perfectly capable - and why should there be any discrimination? It is a problem. We see it now right across the country where there is discrimination: so-and-so is too old, or does not have the right image, and so on and so forth, yet they are perfectly capable of doing a fantastic job. I think people should be considered on their merits. The worst thing, I think, is a kind of age discrimination where people who have a huge contribution still to make and have huge experience in life are sometimes excluded because: "They are too old, they won't understand", and all that kind of nonsense. In my own family circumstances, my father-in-law lived with us for 20 years and my children, I think, have a better understanding of older people than many of their contemporaries because of the influence my father-in-law brought to our family. Q36 Julie Morgan: Is this the only Children's Commissioner that we know of? Mr Touhig: We are not aware of anyone anywhere else. It would be a first. Q37 Chairman: Another first for Wales? Mr Touhig: Another first for Wales. Q38 Chairman: Before we wind up, it is likely that the Prime Minister has not just gone to the Palace for a cup of tea. This is the last opportunity in this session to put on the record that we have worked very well with the Wales Office and we would like to thank you, Minister, and your colleagues for the answers that you have given us. We may not have agreed with them all over the period but they have been given in the best spirit. I would like to thank my colleagues for the work that they have done on the Committee, and, most of all, as people who have a much wider role now than when we started out, I would like to thank very much the staff who have been outstanding with the work that they have done and the expanded and continuing pressure that they have been under. Mr Touhig: Can we thank you - working with you has been very good - and commend your staff for the courteous way in which they handle any queries and problems? Some of your reports have been a bit awkward for us but that is what you are supposed to be doing - scrutinising us and trying to make sure that we try and improve things. You will continue to do that job and I think that is important. Thank you for your help. Chairman: Thank you. |