Clause
12
Investigation
of complaints made by vulnerable designated
consumers
Susan
Kramer:
I beg to move amendment No. 47, in
clause 12, page 7, line 18, after
‘vulnerable’, insert ‘or otherwise
disadvantaged’.
The
clause discusses the investigation of complaints made by vulnerable
designated consumers. The opening subsection
states:
“Subsection
(3) applies to a complaint which is made...by or on behalf of a
vulnerable person in that person’s capacity as a designated
consumer”.
The amendment
would change the word “vulnerable” to “vulnerable
or otherwise
disadvantaged”.
I
have serious concerns about the subjectivity of the use of the word
“vulnerable” as a definition, as it is not a word that is
widely and commonly used and there is not a wide and common
understanding of it. There is an attempt to define it in subsection
(2), which
states:
“For
this purpose a person is ‘vulnerable’ if the Council is
satisfied that it is not reasonable to expect that person to pursue the
complaint on that person’s own
behalf.”
Again, that is
an extremely subjective set of judgments. There is not a lot of history
to it and most people
might very much disagree about whether they are part of that vulnerable
community. Honest people and those of integrity and judgment could
disagree about whether they fell into that category. We therefore propose not the
removal of the word “vulnerable” but the addition of the
word “disadvantaged”, about which there is a much broader
sense of understanding. People on low incomes, older people and those
with a range of disabilities would understand themselves to fall within
the disadvantaged category. I feel that “vulnerable” is a
fairly insulting notion, because it suggests that someone is short on
the ability to understand or to be capable, when it might simply be
that they find it difficult to exercise their rights, which can
certainly be true.
We
want to ensure that the category includes the people whom we recognise
more typically as disadvantaged. We discussed a proposal, tabled by the
right hon. Member for Coatbridge, Chryston and Bellshill, that had a
much fuller listing of groups that I would have called vulnerable or
disadvantaged, but which have disappeared from the set of definitions
in the clause. I should be interested to hear the Minister’s
comments on the issue and to have at least some reassurance that the
intent of the clause and its language is to cover the group that we
would consider to be disadvantaged, not to provide the opportunity for
a very much narrower set of definitions, which is how I fear some will
interpret the
clause.
Mr.
McCartney:
What I shall say about the amendment is in
addition to what I said in previous discussions and to what I will say
in other discussions that we will have on the matter. I accept what the
hon. Lady said about language. It is indeed of critical importance, but
the amendment would not produce more appropriate language than is in
the Bill, and I shall explain why. In the end, it is down to what we
are trying to achieve in practical terms and, importantly, for
whom.
Some examples
are provided in the explanatory notes, but even those examples
represent a huge, diverse community of people who, for different
reasons, will require the support of advocacy bodies. In addition, the
organisations that provide postal, water, gas and electricity services,
whether supply or distribution, will be required to make changes to
their complaints processes to ensure that they can deal effectively
with the issues raised by vulnerable consumers. They must be
accountable.
I hope
that what I say will reassure the hon. Lady. I want to give an example
of the activities that are now taking place because of campaigning by
the NCCand other organisations that represent a range of
consumers who have not special needs, but needs that require
appropriate responses and resources to ensure that there are effective
opportunities to resolve the issues that affect them in the provision
of goods or services. I hope that I am able, through my remarks, to
build further confidence in what we want to achieve through the NCC and
by encouraging and building on cultural and organisational change in
the organisations that provide the goods and
services.
Any list of
specific examples of vulnerability carries a high risk of leaving out a
group of consumers who
could be provided with much-needed assistance by the new council.
Instead, the Bill leaves it to the new council’s discretion to
assist consumers who are in need of assistance. The addition of the
words “or otherwise disadvantaged” simply would not add
anything worth while to the meaning of the
provision. Clause
12(2) provides that, for the purposes of the clause, a person is
vulnerable
“if the
Council is satisfied that it is not reasonable to expect that person to
pursue the complaint on that person’s own
behalf.”
The
vulnerability may be of a long-term or a short-term nature. For
example, grief can so overwhelm a person when a close relative dies
that they are incapable of dealing with aspects of their life,
including issues around gas, electricity, water, postage and so on.
They need help, too. I doubt that it would be possible to find a legal,
technical definition for what we are attempting to do by including
someone like that. The debilitating loss of a loved one and the
physical and emotional consequences affect hundreds and thousands of
people in Britain each
month.
There will be
people who end up during the course of a complaint with a disability
because of a trauma. There must be the ability between the opening up
of a complaint and the resolving of it to ensure that an individual
whose circumstances change is treated appropriately. That cannot be
expressed in legislation in the way that has been
suggested.
The
language is important. Wide discretion is not discretion to do nothing;
it is discretion to try to maximise the pool of opportunity for those
who need support and assistance for whatever reason, and it is
important that we view it in that way. The Bill does not go any further
in defining what “vulnerable” means, because there are
many ways in which consumers can be vulnerable. It will provide the
necessary flexibility for the council to examine cases with the
benefitof increasing understanding of what constitutes
vulnerability in any given
circumstance.
6
pm
I wish to give
the hon. Lady an assurance. There is a challenge here, is there not?
Going back to my earlier remarks, the challenge is to ensure that we
have the knowledge base and the skill sets so that at the point of
contact, the individual concerned is dealt with with dignity, respect
and understanding of the issues in their life that will affect their
advocacy opportunities. That is why, for example, the Energy Retail
Association has a complaints charter, and we need to examine such good
practice and involve it in the new NCC. For example, the ERA has a
support strategy to try to ensure that no vulnerable customer is
disconnected from their energy supply, in accordance with ERA
guidelines. It is now trying to train staff specifically to handle
complaints and provide staff specifically trained to deal with
vulnerable customers, and senior managers are
empowered to resolved disputes on behalf of
vulnerable
customers.
The matter
is not just about the role of the NCC. It goes back to another point
that I made earlier to my right hon. Friend the Member for Coatbridge,
Chryston and Bellshill: it is about changing the structure and the way
in which companies operate in the relevant sectors, so that they
operate effectivelyon behalf of the consumer and recognise
their
responsibility. The impact if they fail to do so will be that they end
up in a redress situation. I am certain that in those circumstances the
redress schemes will be effective. I cannot think of a company that
wants to spend its time getting a bad name because of how it deals with
consumers and seeing tens or hundreds of thousands of pounds a month
leaving its coffers because it acts inappropriately towards
disadvantaged consumers. There is a big emphasis on their
gettingit right—prevention as part of the cure. It is
also important that there is a process for learning from mistakes and
sharing best practice. We must improve the skill mix
and capacity for the system to work effectively, and I give the hon.
Lady the assurance that part of the process of implementation will be
about that, to ensure that the commitments given in the clause can be
implemented practically in people’s day-to-day experiences. I
believe that that is what the hon. Lady is on about—giving
certainty to consumers’ day-to-day experiences when they have an
interface with the NCC, the companies concerned and the redress scheme.
That is important, and I accept what she says. I hope that, with those
assurances, she will be able to accept what I am
saying.
Amendment No.
47 would add to the word “vulnerable” the words
“or otherwise disadvantaged”. Again, that is not
necessary. As I said, any list of examples of vulnerability carries the
risk of leaving out a particular individual or group of
consumers.
I hope
that the hon. Lady accepts that I have genuinely tried to set out the
ethos of what we want to do; the challenges that we face in doing it;
the training and improvement that we need in the skill mix so that the
NCC can act as advocate, and the role that companies need to play by
changing. Some have to change dramatically, and I have no doubt that
the redress schemes will change the landscape dramatically. It will no
longer be a matter of shrugging one’s shoulders and saying,
“Well, we’ll get to that complaint. Sorry, it
won’t happen again.” There will be an obligation on all
in the system to make it operate effectively and to ensure that for
anyone who has a disadvantage, for whatever reason, we have the
ability, skills and ethos in the organisation to deal effectively with
their issues.
I turn
to a final point that I believe is important to the hon. Lady and is
also important to me as a Minister. It is inevitable when a new
organisation is established that there will be a problem with working
it in and getting it established, up and working. No organisation has
ever been created and from day one operated at 100 per cent.
effectiveness. I do not wish to make an excuse in advance, and the
implementation strategy is to make the organisation as effective as we
can from day one. It is therefore important in the process of
implementing the strategy that we havethe capacity to consider
thoroughly how to ensure that the commitments given in the clause work
effectively. The experience that the clause is intended to create is an
effective one on behalf of those with a disadvantage.
Again, I will be happy during
the implementation stage after the Bill has become an Act to be as
transparent and open as I can. I give another commitment that the new
body will consult not only Ministers but those who represent people out
in the community who have specific needs. It is important to
build such partnerships. There are skills and knowledge out there that
need to be utilised and developed. In giving that assurance, I
return to another point, which will be my final one. We are not only
giving it a duty to provide information but a research duty, and part
of that research must surely be for the organisation, in representing
consumers, to be able to look to whether or where improvements can take
place in a quite transparent, honest and effective way. This is one
area that, if Members do not mind me saying so, is like building the
Forth road bridge. Once we start the process of change then, on a
step-by-step and ongoing basis, we will see the ability to right the
wrongs that have gone on for many years in the public and private
sectors—a failure to provide proper advocacy and other services
for disadvantaged individuals and groups. When something goes wrong, it
is always those who are disadvantaged that end up the poorer, whether
it is a public service, or a service provided by the private sector for
the public one, or a private sector provider of goods and services who
does not do it appropriately.
This is an important area,
which we will build on. There will be an ongoing process of learning
and improvement for the organisation and the role that it plays next
year, the year after and the one after again, in effecting services on
the part of people who are disadvantaged. I hope that my comments will
reassure the hon. Lady, at least to the point that we are in the same
game and want to achieve the same objectives so that, in a practical
way, the experiences that disadvantaged people have had in the past
will not be repeated in future.
Susan
Kramer:
I appreciate the robust definitions that the
Minister has given of people who should perhaps fall within this
vulnerable category, and who could look for support and help from the
National Consumer Council. I will give way by withdrawing the
amendment, but in terms of the underlying sentiment the Minister should
be aware of some of the difficulties around the language.
I will give an example; I have
a constituent with a severe speech impediment, and when he attempts to
contact me on the phone, it is a long and difficult process to
understand what he is telling me. I am sure that he would be considered
“vulnerable” in the eyes of this definition. If we were
to look into his face and tell him that he was vulnerable, he would be
utterly insulted. He would regard himself as disadvantaged by society,
but would not see himself as falling into that category of helplessness
that one calls “vulnerable”. That is a point frequently
missed in the kinds of language and definitions that we use, so I feel
strongly that it would be wise to look at this again.
However, I fully accept what
the Minister says—that this is in a process in motion, as it
were, and that change will come over a period of time. He has provided
some extensive reassurances that the use of “vulnerable”
is not an attempt to narrow but to broaden. I therefore beg leave to
withdraw the amendment.
Amendment, by leave,
withdrawn.
Susan
Kramer:
I beg to move amendment No. 48, in
clause 12, page 7, line 30, leave
out ‘may’ and insert ‘shall’.
This amendment may seem among
the tiniest that could be found, but it is a crucial one. We are
looking now at subsection 3 of clause 12, which reads,
“Where a complaint to
which this subsection applies is referred to the Council by or on
behalf of the designated consumer, the Council may investigate the
complaint for the purpose of determining whether it is appropriate to
take any action under subsection
(4)”.
We feel strongly
that of all the places where “may” is
inappropriate—and where “shall” should be
inserted—this one is overwhelmingly important, because this is
about any requirement on the NCC to follow through and deal with
individual complaints from the kind of vulnerable consumers that we
have just discussed.
Earlier, when my hon. Friend
the Member for Solihull raised the issue of changing the word
“may” to “shall”, when looking at the
various duties of the NCC, the Minister gave an extremely enlightening
reply that, regarding this clause, was exceedingly worrying. I do not
have it verbatim but he was saying, in effect, that it is necessary for
the NCC to have flexibility within its work programme function not to
carry out an activity perhaps to the fullest extent. There had to be
regard to the way that money was spent, and to funding.
I must say that, in this area,
where we are talking about vulnerable customers—someone
identified under the definition as “vulnerable” and
therefore in need of support—to turn around and say that there
is any possible scenario in which they cannot rely on the NCC to take
their case forward—we are only talking about taking it forward
to the point of investigation, and we are not saying that the NCC must
carry this right the way through to get a resolution, because they are
not even required to give advice or whatever, just to determine whether
or not an investigation would be appropriate—it seems to me that
there should be no possibility that a person could hear the word
“no” in that kind of instance.
So I say to the Minister that,
although I understand that he is concerned about independence, it seems
to me that there must be a necessary balance here. People who are
highly vulnerable need to know that the advocate is there for them, and
there for sure. Therefore, to put in a provision for the independent
council to decide that, in some cases, or in all cases, or in a
percentage of cases, or after a certain number of cases have been
reported in the year, or whatever else, that it need not exercise this
particular set of roles is exceedingly worrying.
I am responding to the
comments that the Minister made, that flexibility is required; here is
a case where flexibility should not be required. I ask the Minister to
reconsider in this instance, and to recognise, by character, that it is
different from the other instances where we have raised what sounds
like a similar issue, but this issue, by all measures, is far more
important.
Mr.
McCartney:
An advocacy organisation is best judged by its
effectiveness, by the decisions that it makes at the outset, when it
receives a complaint, as to the appropriate place where that complaint
should be taken, and who has the responsibility to take it to that
point and ensure that the complaint is dealt with in a relevant
way.
That is why I think that the
amendment is not particularly helpful for consumers in general and
vulnerable consumers in particular. That is because there will be
occasions when the complaint is not best dealt with by the NCC, but by
someone else, because it is their responsibility. What the clause seeks
to do is to ensure that, whatever access the consumer makes, at that
access point someone takes responsibility to assist them and not simply
say: “Not ours, Guv’. Go somewhere else. Look up Yellow
Pages, but it’s not us. Go to the CAB, but it’s not
us.” I do not think thatthat approach is reasonable or
right. Therefore it is important that the new council must consider
complaints from vulnerable consumers and assess whether those
complaints should be investigated by the council or should be referred
to another party better placed to resolve the issue.
In the end, what is the bottom
line here? When a complaint is made, the bottom line is to ensure that
it is accessed at the right point to be resolved, and hopefully
resolved to the benefit of the consumer. For example, a breach of a
license condition would be better dealt with by the appropriate
regulator, not by the NCC, as set out in clauses 14 or 15. Those
clauses allow the new council to refer matters to Ofgem or Postcomm,
ifit considers that the regulators should use their
enforcement powers to remedy the problem.
Susan
Kramer:
I appreciate the Minister giving way. Let me read
again the measure—clause 12(3)—that I am referring to. It
says:
“Where a
complaint to which this subsection applies is referred to the Council
by or on behalf of the designated consumer, the Council may investigate
the complaint for the purpose of determining whether it is appropriate
to take any action”.
In
other words, we are even using the word “may” about
whether or not the complaint should be sent off to another body, or
retained within the NCC. The clause does not say that the council must
carry the process out to the far end. There is not even an obligation
on the council to decide whether the matter is one with which it should
deal or one that should go somewhere else. The case that the Minister
is making relates to the step afterwards—after the
“shall” has taken place, so I question whether he really
intends that “may” should stand, at least within the
meaning ofthe
Bill.
6.15
pm
Mr.
McCartney:
I can see where the hon. Ladyis coming
from, but she is misconstruing the Government’s intention. There
is no point in having an advocacy body and yet giving it a bureaucratic
obligation to deal with matters that should be dealt with by some other
body that has the appropriate powers. Nor would it be right to create a
body under the clause which could opt out and say, “This has
nothing to do with us.” The proposals must be seen practically.
The NCC is an advocacy body, and we are trying to ensure certainty
that, when complaints are made, an assessment will be made of the best
body to deal with them—based on the statutory reasons, or
reasons of skill, or a mixture of both—so that they are directed
where they should go. That is important.
We see that type of process all
the time in our capacity as MPs. Every day, people come to our offices
as advocates, and our staff have to make an assessment. If we want to
be friendly with everyone and give a good impression, we say,
“Don’t worry, I will deal with this complaint”,
and they leave feeling happy. But two days or two weeks later they come
back and say, “What happened to my complaint?” Our staff
system is not designed to deal with complaints in that way—our
job is to be advocates on behalf of our
constituents.
The
same point applies in relation to the clause in a broad sense. We need
the most appropriate person: first, to advocate; secondly to resolve;
and thirdly to remedy. If a remedy cannot be found, there should be
redress. That is why it is important to deal with things in the way
that we are proposing.
If Ofgem can use its powers of
determination over connection changes to the distribution network, it
should do so, but when the matter is best dealt with by agreement
between Postcomm and the council, it should be dealt with in that way.
The most important consideration is to ensure that the arrangements
provide greatest ease of use by
consumers.
The hon.
Member for Richmond Park agrees with that position, and her objective
is the same as mine. She just does not believe that the clause goes far
enough. However, ultimately, the question is not just one of the words
on paper. I keep coming back to the point that the question is also one
of organisational ethos, skills, structure, advocacy and the ability to
give effective representation. When users come forward, they should be
signposted to the appropriate people. That is why the provision is
framed in the way it
is.
I should not ask
the hon. Lady to trust me—that would not be fair. She is acting
as a legitimate advocate. However, I seek to reassure her on the basis
thatthe legislation is not drafted on a minimalist but a
maximalist
approach.
Let me be
controversial. An advocacy organisation can be effective only if part
of its advocacy role includes telling people, “You ain’t
got a case”, or telling people that their case should be dealt
with somewhere else. That is fine, as long as the quality of the
relationship between the advocacy organisation and the other body is
made clear. There should be relationships to ensure that individuals
who enter the complaints process and initially go to the wrong
organisation are directed by that organisation to the right place. That
is what the clause is about and I assure the hon. Lady that that is
what we are trying to achieve.
Lorely
Burt:
I apologise if I am stretching the Minister’s
extensive good will and patience. He just said that the organisation
must be able to tell people the truth about whether their complaints
can be resolved. Surely, however, they cannot do that unless they have
investigated the complaint. All that my hon. Friend and I are trying to
obtain from the Minister is an assurance that when a complaint comes
forward, somebody will have to assess whether the individual has a
valid complaint. I think that that is what the Minister is saying and I
would be grateful if he would confirm that.
Mr.
McCartney:
I went over and over that point and I do not
want to labour it. I repeat that the clause has to be seen in
connection with clauses 14 and 15. If those building blocks are put
together, we will have an effective process for dealing with the
individuals whose interests the hon. Lady has been
advocating.
Susan
Kramer:
I thank the Minister. He is right to say that he
and I have exactly the same intentions for the Bill. Having those
intentions emphatically repeated on the record is exceedingly helpful.
I still think that the drafting of the Bill is in error, however. It
does not reflect the statement that the Minister just made. I hope that
his drafting team will take an opportunity to examine the language; I
think that they have fallen into the trap of using “may”
automatically as they work through the Bill, and have not recognised
that they are dealing with a clause of a different character. From
everything that the Minister has said, it seems thathis
intention would be for the NCC to consider a vulnerable
customer’s complaint to see whether it is appropriate to pursue
it.
I hope very much
that the issue will not be dropped by the drafting team. As the
Minister’s intention was so clearly stated, however, and because
I know that there is no possibility of winning on this issue as we have
no support from others in this House, I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Clause
12 ordered to stand part of the
Bill.
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