Clause
79
Fees
Mr.
O'Brien:
I beg to move amendment No. 46, in
clause 79, page 38, line 33, leave
out ‘specified factors’ and insert ‘factors
specified by
regulations’.
As
we gallop towards schedule 5, we just have to rein in a touch on
amendment No. 46. Subsection (1) of the clause enables the commission
from time to time to make provisions for fees to be paid in various
circumstances. Our amendment would give Parliament sight of the factors
on which the amount of a fee would be determined. There is a wider
principle about fees and whether Parliament should vote not only on the
fee-making powers, but the level of the fees charged. One recent
example of the potential impact of such a power comes from the
palliative care
sector.
The
Government have set the Healthcare Commission, along with all other
regulators in England, a requirement to recover the full costs of
regulation from fees by the 2008-09 financial year. In the past, fees
for hospices have been at discounted rates. In 2006-07, the Healthcare
Commission froze fees for regulating hospices and type 3 hyperbaric
chambers that are used inter alia to combat the side effects of some
cancer treatments, and by voluntary multiple sclerosis treatment
centres for MS sufferers. From April 2007, it reduced fees by 22 per
cent. for hyperbaric chambers and slowed down significantly the planned
phasing out of existing subsidies for hospices, with most fees frozen
for the second year
running.
The
Healthcare Commission is working from a principle that the fees should
reflect the actual costs of regulation, not what establishments can
afford to pay. Fees are therefore highest for those establishments that
are unable to provide assurance of standards and need frequent
check-ups, and lowest for those that need the least intervention. The
commission notes that it consulted on that approach and received strong
support, including from voluntary organisations. However, in its
briefing on the subject, it says that it
believes
“that if a
special case were to be made for voluntary organisations’ fees,
it would be for democratic Government—not the
regulator—to decide that public funds or other
establishments’ fees should be used to subsidise
them”.
It continues to
say, however, that it
acknowledges
“that
voluntary organisations and small businesses feel the impact of a fixed
overhead such as regulatory fees more acutely than large
businesses”.
I am sure
that we all say “Hear, hear” to that. It goes
on:
“Our fees
schemes take this into
account”.
Under the
planned increases for 2007-08, the Healthcare Commission is proposing
charge increases for hospices with four or more beds, involving a
frozen fee set at £2,376. A hospice with, for example, three
in-patient beds, would see the burden of costs rise from the current
total of £907—the registration fee plus the flat rate for
inspection costs—to £2,213. That is far more than double,
encompassing the doubling of the registration fees for small hospices,
plus the new increased flat-rate inspection fee and the removal of the
exemption from the charge per bed for hospices with fewer than four
beds. Therefore, the impact on smaller hospices is disproportionate and
seems to run counter to the commission’s stated goal of finding
a balance between full cost recovery and affordability for voluntary
organisations. 3.45
pm
Furthermore, in
response to a written parliamentary question asked by my hon. Friend
the Member for Macclesfield (Sir Nicholas Winterton) in February last
year, the Chief Secretary to the Treasury, who was then a Health
Minister,
said:
“We have
made no assessments in connection with the regulatory fees hospices pay
the Healthcare Commission.”—[Official Report, 28
February 2007; Vol. 457, c.
1425W.]
In my view, that
suggests a disturbing lack of ministerial accountability and
parliamentary control in the fee-charging arrangements. It is not that
it is coarse for us to fix the charge of the precise fees, but the
concept of trying to minimise the burden on the smaller organisations,
particularly the voluntary organisations that are doing such valuable
work, and also of trying to establish a fairer arrangement, rather than
a financially driven arrangement, seems to be an area where we as
parliamentarians can set the appropriate
parameters.
Therefore,
I hope that the Minister will address the following questions. First,
can he confirm that he does not expect the fees to deviate wildly from
those currently levied by the regulatory bodies? Secondly, can he
confirm the unfortunate increase in the regulatory burden on smaller
hospices? Thirdly, what assessment has he made of the Healthcare
Commission’s contention that it is for democratic Government to
make the case for public funds or other establishments’ fees
being used to subsidise voluntary organisations’ fees? Finally,
where would he see the power of Parliament in relation to that
contention?
I hope
that that is a clear outline of the concern that arises as a result of
clause 79. The amendment that we have tabled is to enable the Minister
to give some insight and also to ensure that those who have to deal
with this Bill have the platform of fairness as well as that of
practicality going forward.
Mr.
Bradshaw:
I accept that it is important that there are
safeguards in place to ensure that the fee levels set are reasonable
and proportionate; I also accept that that is the aim of this
amendment. However, we believe that there are already a number of
safeguards in place in the clause. For example, although the commission
will be able to choose what approach it takes to charging fees, which I
think is absolutely right—we are keen to ensure that the
commission remains independent—those fees will need to be
approved by the Secretary of State. The commission will also have to
consult before making provision about fees. The Secretary of State may
also make regulations to provide for matters that the commission should
take
into account when setting the fees. Finally, the clause allows the
Secretary of State to create regulations making alternative provision
about fees to replace that made by the commission in the unlikely
scenario that we think that the commission has exercised, or is
proposing to exercise, its power inappropriately. Given all those
safeguards, I hope that the hon. Gentleman may acknowledge that the
amendment is not necessary.
Mr.
O'Brien:
I am not going to detain the Committee by asking
us to divide, because I think that this exchange itself has been
useful. If there are any further points to be made about the clause
that can help to clarify matters for those who must deal with it in the
future, I am sure that that is something that we can come back to on
Report or in another place. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 79 ordered to stand
part of the
Bill.
Clauses
80 to 84 ordered to stand part of the
Bill.
Clause
85
Offences
by the body
corporate
Question
proposed, That the clause stand part of the
Bill.
Mr.
O'Brien:
I have one question for the Minister. The clause
deals with offences by bodies corporate. Under subsection (3)(b),
members of NHS bodies can be liable. Does that include all members of
NHS foundation
trusts?
Question put
and agreed
to.
Clause 85
ordered to stand part of the Bill.
Clause
86
Unincorporated
associations
Question proposed, That
the clause stand part of the Bill.
Mr.
O'Brien:
I make exactly the same point, but in this case
rather than members of NHS foundation trusts I ask the Minister whether
the provision includes all members of unincorporated associations. This
question may possibly be a touch more
difficult.
Mr.
Bradshaw:
I shall have to write to the hon.
Gentleman.
Question put and agreed
to.
Clause 86
ordered to stand part of the Bill.
Clauses 87 to 89 ordered to
stand part of the
Bill.
Schedule
5
Further
amendments relating to Part
1
Mr.
Bradshaw:
I beg to move amendment No. 248, in
schedule 5, page 122, line 38, leave
out sub-paragraph (2) and insert—
‘(2) For subsection (3A)
substitute—
“(3A)
But the functions which may be so specified do not include functions of
making, confirming or approving subordinate legislation (as defined by
section 158(1) of the Government of Wales Act
2006).”’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 179 to 194 and Government amendment No.
178.
Mr.
Bradshaw:
Amendment No. 248 relates, as I mentioned
earlier, to the requests of Welsh Ministers. It puts in place new
powers for Welsh Ministers in relation to the Care Standards Act
2000.
Mr.
O'Brien:
The best that the Opposition can do in relation
to these amendments is to note them. They are obviously the result of
discussions and negotiations. The only thing that concerns us is to
ensure that, as we consider the inter-relationship with what is going
to happen under the auspices of Welsh Ministers, the Minister keeps in
mind the fact that we will be perpetually seeking reassurances about
the consistency of approach between Wales and England. He is more than
well aware that it is a genuinely live issue. It is not only to do with
things being better on one side of the border, or the other. It will
have a real effect for those who represent constituencies on the border
between Wales and England. It would be helpful to get it right, as we
would all be dealing with fewer of the cases on border inconsistencies
that tend to fill our surgeries. On that basis, I am happy to note the
Government amendments.
Amendment
agreed to.
Amendments
made: No. 179, in
schedule 5, page 123, line 16, at
end insert—
“14A Suspension
of registration
(1) The Welsh
Ministers may at any time suspend for a specified period the
registration of a person in respect of an establishment or agency for
which the Welsh Ministers are the registration
authority.
(2) Except where the
Welsh Ministers give notice under section 20B, the power conferred by
subsection (1) is exercisable only on the ground that the establishment
or agency is being, or has at any time been, carried on otherwise than
in accordance with the relevant
requirements.
(3) The
suspension of a person’s registration does not affect the
continuation of the registration (but see sections 24A and 26 as to
offences).
(4) A period of
suspension may be extended under subsection (1) on one or more
occasions.
(5) Reference in
this Part to the suspension of a person’s registration is to
suspension under this section, and related expressions are to be read
accordingly.
(6) In this
section “relevant requirements” has the same meaning as
in section
14.”’.
No.
180, in
schedule 5, page 123, line 17, at
end insert—
‘(za) in
subsection (1), at the end of paragraph (b) insert
“or—
“(c)
for the cancellation of, or the variation of the period of, any
suspension of the
registration.”’.
No.
181, in
schedule 5, page 123, line 18, leave
out from ‘(3)’ to end of line 19 and
insert—
‘(i) after
“(a)” insert “or (c)”,
and
(ii) for the words from
“a fee of—” to the end substitute “a fee of
the prescribed
amount”,’.
No. 182, in
schedule 5, page 123, line 19, at
end insert—
‘(ab) after
subsection (4)
insert—
“(4A) If
the Welsh Ministers decide to grant an application under subsection
(1)(c), they must serve notice in writing of their decision on the
applicant (stating, where applicable, the period as varied).”,
and’.
No.
183, in
schedule 5, page 123, line 26, at
end insert—
‘14A In section
17 of the 2000 Act (notice of
proposals)—
(a) in subsection (4),
after “section 20” insert “or 20A or gives notice
under section 20B”,
(b)
after paragraph (a) of that subsection
insert—
“(aa) to
suspend the registration or extend a period of suspension;”,
and
(c) in subsection (5),
after “(a)” insert “or
(c)”.
14B In section 19
of the 2000 Act (notice of decisions), in subsection
(4)—
(a) omit the word
“and” at the end of paragraph (b),
and
(b) after that paragraph
insert—
“(ba) in
the case of a decision to adopt a proposal under section 17(4)(aa),
state the period (or extended period) of suspension;
and”.’.
No.
184, in
schedule 5, page 123, line 27, leave
out paragraph 15 and
insert—
‘15 (1) Section 20
of the 2000 Act (urgent procedure for cancellation etc) is amended as
follows.
(2) In subsection
(1)—
(a) after
“If” insert “in respect of an establishment or
agency for which the CIECSS is the registration
authority”,
(b) in
paragraph (a), for “the registration authority”
substitute “the CIECSS”,
and
(c) in sub-paragraph (i) of
that paragraph, for “an” substitute
“the”.
(3) In
subsection (3), for “the registration authority”
substitute “the
CIECSS”.
(4) In
subsection (5), for “the registration authority”
substitute “the
CIECSS”.
(5) For
subsection (6)
substitute—
“(6)
For the purposes of this section the appropriate authorities
are—
(a) the local
authority in whose area the establishment or agency is situated;
and
(b) any other statutory
authority whom the CIECSS thinks it appropriate to
notify.”
(6)
Accordingly, for the heading of section 20 substitute “Urgent
procedure for cancellation, variation etc:
England”.’.
No.
185, in
schedule 5, page 123, line 31, at
end insert—
‘15A After
section 20 of the 2000 Act
insert—
“20A Urgent
procedure for cancellation:
Wales
(1) If in respect of an
establishment or agency for which the Welsh Ministers are the
registration
authority—
(a) the Welsh
Ministers apply to a justice of the peace for an order cancelling the
registration of a person in respect of the establishment or agency,
and
(b) it appears to the
justice that, unless the order is made, there will be a serious risk to
a person’s life, health or
well-being,
the justice may
make the order, and the cancellation has effect from the time when the
order is made.
(2) An application under subsection (1) may, if the
justice thinks fit, be made without
notice.
(3) As soon as
practicable after the making of an application under this section, the
Welsh Ministers must notify the appropriate authorities of the making
of the application.
(4) An
order under subsection (1) is to be in
writing.
(5) Where such an
order is made, the Welsh Ministers must, as soon as practicable after
the making of the order, serve on the person registered in respect of
the establishment or
agency—
(a) a copy of
the order, and
(b) notice of
the right of appeal conferred by section
21.
(6) For the purposes of
this section the appropriate authorities
are—
(a) the local
authority in whose area the establishment or agency is
situated,
(b) the Local Health
Board in whose area the establishment or agency is situated,
and
(c) any statutory authority
not falling within paragraph (a) or (b) whom the Welsh Ministers think
it appropriate to notify.
(7)
In this section “statutory authority” has the same
meaning as in section 20.
20B
Urgent procedure for suspension or variation etc:
Wales
(1) Subsection (2)
applies where—
(a) a
person is registered under this Part in respect of an establishment or
agency for which the Welsh Ministers are the registration authority,
and
(b) the Welsh Ministers
have reasonable cause to believe that unless they act under this
section any person will or may be exposed to the risk of
harm.
(2) Where this subsection
applies, the Welsh Ministers may, by giving notice in writing under
this section to the person registered in respect of the establishment
or agency, provide for any decision of the Welsh Ministers that is
mentioned in subsection (3) to take effect from the time when the
notice is given.
(3) Those
decisions are—
(a) a
decision under section 13(5) to vary or remove a condition for the time
being in force in relation to the registration or to impose an
additional condition;
(b) a
decision under section 14A to suspend the registration or extend the
period of suspension.
(4) The
notice must—
(a) state
that it is given under this
section,
(b) state the Welsh
Ministers’ reasons for believing that the circumstances fall
within subsection (1)(b),
(c)
specify the condition as varied, removed or imposed or the period (or
extended period) of suspension,
and
(d) explain the right of
appeal conferred by section
21.”’.
No.
186, in
schedule 5, page 123, line 31, at
end insert—
‘15B (1) Section
21 of the 2000 Act (appeals to the Tribunal) is amended as
follows.
(2) In subsection
(1)(b), after “20” insert “or
20A”.
(3) In subsection
(3), after “authority” insert “, other than a
decision to which a notice under section 20B
relates,”.
(4) After
subsection (4)
insert—
“(4ZA) On
an appeal against a decision to which a notice under section 20B
relates, the Tribunal may confirm the decision or direct that it shall
cease to have
effect.”
(5) In
subsection (5)—
(a) omit
the word “or” at the end of paragraph (b),
and
(b) after paragraph (c)
insert “; or
(d) to vary
the period of any
suspension.”
(6) After subsection (5)
insert—
“(6)
Subsection (1) does not apply to a decision of the Welsh Ministers
under section 30ZA (penalty
notices).”’.
No.
187, in
schedule 5, page 123, line 34, at
end insert—
‘16A After
section 24 of the 2000 Act
insert—
“24A Offences
relating to suspension
(1) If a
person who is registered under this Part in respect of an establishment
or agency carries on or (as the case may be) manages the establishment
or agency while the person’s registration is suspended, the
person is guilty of an
offence.
(2) A person guilty of
an offence under subsection (1) is liable on summary conviction to a
fine not exceeding level 5 on the standard
scale.”
16B In section 26
of the 2000 Act (false descriptions of establishments and agencies),
after subsection (1)
insert—
“(1A) If a
person’s registration under this Part has been suspended, the
registration is to be treated for the purposes of subsection (1) as if
it had not been
effected.”’.
No.
188, in
schedule 5, page 123, line 35, leave
out paragraph 17 and
insert—
‘17 In section 29 of
the 2000 Act (proceedings for
offences)—
(a) for subsection (1)
substitute—
“(1)
Proceedings in respect of an offence under this Part or regulations
made under it shall not, without the written consent of the Attorney
General, be taken by any person other than the CIECSS or the Welsh
Ministers.”,
(b) in
subsection (2), for “a period of six months” substitute
“the permitted period”,
and
(c) after subsection (2)
insert—
“(3)
“The permitted period”
means—
(a) in the case
of proceedings brought by the Welsh Ministers, a period of 12
months;
(b) in any other case,
a period of 6
months.”’.
No.
189, in
schedule 5, page 123, line 37, at
end insert—
‘17A After
section 30 of the 2000 Act
insert—
“Penalty
notices
30ZA Penalty
notices
(1) Where the Welsh
Ministers are satisfied that a person has committed a fixed penalty
offence, they may give the person a penalty notice in respect of the
offence.
(2) A fixed penalty
offence is any relevant offence
which—
(a) relates to an
establishment or agency for which the Welsh Ministers are the
registration authority, and
(b)
is prescribed for the purposes of this
section.
(3) A relevant offence
is—
(a) an offence under
this Part or under regulations made under this Part,
or
(b) an offence under
regulations made under section 9 of the Adoption and Children Act
2002.
(4) A penalty notice is a
notice offering the person the opportunity of discharging any liability
to conviction for the offence to which the notice relates by payment of
a penalty in accordance with the
notice.
(5) Where a person is
given a penalty notice, proceedings for the offence to which the notice
relates may not be instituted before the end of such period as may be
prescribed.
(6) Where a person
is given a penalty notice, the person cannot be convicted of the
offence to which the notice relates if the person pays the penalty in
accordance with the notice.
(7)
Penalties under this section are payable to the Welsh
Ministers.
(8) In this section
“prescribed” means prescribed by regulations made by the
Welsh Ministers.
30ZB Penalty notices: supplementary
provision
(1) The Welsh
Ministers may by regulations
make—
(a) provision as
to the form and content of penalty
notices,
(b) provision as to
the monetary amount of the penalty and time by which it is to be
paid,
(c) provision determining
the methods by which penalties may be
paid,
(d) provision as to the
records to be kept in relation to penalty
notices,
(e) provision for or
in connection with the withdrawal, in prescribed circumstances, of a
penalty notice,
including—
(i) repayment
of any amount paid by way of penalty under a penalty notice which is
withdrawn, and
(ii) prohibition
of the institution or continuation of proceedings for the offence to
which the withdrawn notice
relates,
(f) provision for a
certificate—
(i)
purporting to be signed by or on behalf of a prescribed person,
and
(ii) stating that payment
of any amount paid by way of penalty was or, as the case may be, was
not received on or before a date specified in the
certificate,
to be received in
evidence of the matters so
stated,
(g) provision as to
action to be taken if a penalty is not paid in accordance with a
penalty notice, and
(h) such
other provision in relation to penalties or penalty notices as the
Welsh Ministers think necessary or
expedient.
(2) Regulations
under subsection
(1)(b)—
(a) may make
provision for penalties of different amounts to be payable in different
cases, including provision for the penalty payable under a penalty
notice to differ according to the time by which it is paid,
but
(b) must secure that the
amount of any penalty payable in respect of any offence does not exceed
one half of the maximum amount of the fine to which a person committing
the offence would be liable on summary
conviction.
(3) In this
section—
“penalty”
means a penalty under a penalty
notice;
“penalty
notice” has the meaning given by section
30ZA(4).”’.
No.
190, in
schedule 5, page 123, line 37, at
end insert—
‘17B (1) In
section 30A of the 2000 Act (notification of matters relating to
persons carrying on or managing certain establishments or agencies),
inserted by section 25 of the Children and Young Persons Act 2008,
subsection (2) is amended as
follows.
(2) After paragraph
(a) insert—
“(aa)
has decided to adopt a proposal under section 17(4)(aa) to suspend the
registration of P in respect of the establishment or agency or to
extend any such
suspension,
(ab) has given a
notice under section 20B to suspend the registration of P in respect of
the establishment or agency or to extend any such
suspension,”.
(3) Omit
the word “or” at the end of paragraph
(b).
(4) At the end of paragraph (c) insert
“or—
(d) has
given P a penalty notice under section 30ZA in respect of an offence
which it alleges P committed in relation to the establishment or agency
and P has paid the penalty in accordance with the
notice,”.’.
No.
191, in
schedule 5, page 125, line 6, at
end insert—
‘22A
After section 118 of the 2000 Act
insert—
“118A
Regulations: Wales
(1)
This section has effect where a power to make regulations under this
Act is conferred on the Welsh Ministers other than by or by virtue of
the Government of Wales Act
2006.
(2) Subsections (1) and
(5) to (7) of section 118 apply to the exercise of that power as they
apply to the exercise of a power conferred on the Welsh Ministers by or
by virtue of that Act.
(3) A
statutory instrument containing regulations made in the exercise of
that power is subject to annulment in pursuance of a resolution of the
Assembly.”’.
No.
192, in
schedule 5, page 125, line 6, at
end insert—
‘22B In section
120 of the 2000 Act (Wales) omit subsection
(1).’.—[Mr.
Bradshaw.]
Mr.
O'Brien:
I beg to move amendment No. 86, in
schedule 5, page 125, line 33, leave
out ‘omit paragraph (b)’ and insert
‘leave out “CHAI”
and insert “Care Quality
Commission”.’.
The
Chairman:
With this it will be convenient to discuss the
following: amendment No. 87, in
schedule 5, page 125, line 35, leave
out ‘omit paragraph (b)’ and insert
‘leave out “CSCI”
and insert “Care Quality
Commission”.’.
New
clause 4—Complaints
procedure
—
‘(1)
In any case where a complainant is not satisfied with the result of an
investigation by an independent provider, he may request the Commission
to consider the complaint.
(2)
On receipt of a complaint under subsection (1) the Commission must
assess the nature and substance of the complaint and decide how it
should be handled, having regard
to—
(a) the views of the
complainant;
(b) the views of
the body complained about;
(c)
any other relevant
circumstances;
and as soon as
reasonably practicable the Commission must notify the complainant as to
its decision.
(3) The
Commission may conduct its investigation in any manner which seems to
it appropriate, may take such advice as appears to it to be required
and, having regard in particular to the views of the complainant and
any person who or body which is the subject of the complaint, may
appoint a panel to hear and consider
evidence.
(4) The Commission
may request any person or body to produce such information and
documents as it considers necessary to enable a complaint to be
considered properly.
(5) Where
the Commission investigates a complaint it must, as soon as reasonably
practicable, prepare a written report of its investigation
which—
(a) summarises
the nature and substance of the
complaint;
(b) describes the
investigation and summarises its conclusions, including any findings of
fact, the Commission’s opinion of those findings and its reasons
for its opinion;
(c) recommends
what action should be taken and by whom to resolve the complaint;
and
(d) identifies what other action, if any, should be
taken and by
whom.’.
New
clause 5—Independent Complaints
Body
—
‘(1) The
Commission shall establish and maintain a committee to be known as
‘The Independent Complaints
Body’.
(2) In any case
where a complainant is not satisfied with the result of an
investigation by an independent provider, he may request the
Independent Complaints Body to consider the
complaint.
(3) On receipt of a
complaint under subsection (1) the Independent Complaints Body must
assess the nature and substance of the complaint and decide how it
should be handled having regard
to—
(a) the views of the
complainant;
(b) the views of
the body complained about;
and
(c) any other relevant
circumstances;
and as soon as
reasonably practicable the Independent Complaints Body must notify the
complainant as to its
decision.
(4) The Independent
Complaints Body may conduct its investigation in any manner which seems
to it appropriate, may take such advice as appears to it to be required
and, having regard in particular to the views of the complainant and
any person who or body which is the subject of the complaint, may
appoint a panel to hear and consider
evidence.
(5) The Independent
Complaints Body may request any person or body to produce such
information and documents as it considers necessary to enable a
complaint to be considered
properly.
(6) Where the
Independent Complaints Body investigates a complaint it must, as soon
as reasonably practicable, prepare a written report of its
investigation which—
(a)
summarises the nature and substance of the
complaint;
(b) describes the
investigation and summarises its conclusions, including any findings of
fact, the Independent Complaints Body’s opinion of those
findings and its reasons for its
opinion;
(c) recommends what
action should be taken and by whom to resolve the complaint;
and
(d) identifies what other
action, if any, should be taken and by
whom.’.
Mr.
O'Brien:
New clause 4 seeks to establish a complaints
handling function within the Care Quality Commission. Hon. Members will
note that we skipped lightly across some earlier parts of the Bill
because we had the promise and the prospect of dealing with this
important issue more appropriately at this point.
New clause 5 seeks to establish
an independent complaints handling body. Amendments Nos. 86 and 87
would neutralise the Government’s attempts to remove this
responsibility through amendments to the 2003 Act in respect of the CQC
and the complaints framework. I should state from the outset that the
argument for removing the complaints handling function from the CQC has
some merits given that it has been such a drain on the Healthcare
Commission’s resources. During the oral evidence sessions, Dame
Janet Smith, now Lady Justice Smith, stated
that
“health care
complaints are in a mess and causing great
dissatisfaction.——[Official Report, Health and Social
Care Public Bill Committee, 8 January 2008; c.
44.]
In considering these
amendments, the Committee must consider where such complaints will go,
and if it is happy with the status quo as concerns social care
complaints, where part-funders and self-funders have no recourse to
second-tier complaints. That point was also made by the hon. Member for
Romsey during
discussion of another part of the Bill. We have to look at whether the
Committee is happy that the places where such complaints will go will
be allowed to remain. As regards the quality of
complaints, the Committee should note that there are approximately
95,000 complaints in the NHS per annum. The Healthcare Commission
reviews about 5 per cent., which is some 7,600 complaints. My figures
have been derived from a series of parliamentary questions and other
sources. In 2006-07, the health ombudsman received 863
complaints, 239 of which were to do with continuing care and 623 with
other health matters. In the same year, the local government ombudsman
dealt with six complaints into adult care services and two complaints
into residential care. I do not have the figures for local authorities.
If the Minister has them, it will be very helpful to view
them.
The Healthcare
Commission handled 5,867 complaints in 2004-05, 7,644 a year later, and
7,696 a year after that. In 2007-08, up to 14 December last year, 5,515
complaints were made. I hope that that gives the Committee some idea of
the scale of what we have to tackle here.
I am grateful for the
Minister’s confirmation this morning that the backlog of
complaints for the past two years was 5,180 and 2,298 respectively. The
Healthcare Commission is reaching its estimated target of closing 95
per cent. of complaints within two months, which is encouraging. All
Committee members will have had letter from constituents complaining
about the inordinate length of time it has taken to consider and
complete some complaints. We would all like to see a more streamlined
approach, but one that is still
effective.
The
Committee will also be aware of the written submission of the
parliamentary ombudsman. I am sure that the Minister will seek to
remind the Committee that the parliamentary ombudsman states:
“I fully support the
Department’s
proposals.”
However, her
evidence throws up some important statistical questions that the
Minister should answer before the Committee allows the CQC to lose its
complaints
function.
In the final
paragraph of her evidence, the ombudsman states:
“I have already explored
with the Treasury the additional funding I am likely to
require.”
On that hangs
her evidence and presumably her support. I would not want to criticise
her of empire building, but I think that it is important that the
Committee is aware of what additional funding she is likely to require
especially as the first cut from the CQC will be reported as a gross
saving by the Department, but could be a net loss to the taxpayer. The
Committee also should know what costs to the Exchequer it is voting for
as a result of the proposals in the Bill. The ombudsman refers to
forecast increases in her work load. She notes that
“in the short term the changes
will result in an increase in the number of enquiries made to my office
and the number of investigations I undertake...as evidence I note that
when the Scottish health system moved to a similar model, the number of
investigations increased, but not unmanageably so”.
It would be useful if the Minister could
tell the Committee, or write to it to explain what “short
term” means in that context, what the figures in Scotland were,
and what the forecast figures in the case of England
are.
4
pm
The Department
has not so far provided an assessment of the increase in work load for
the ombudsman. On Second Reading, the Secretary of State
said:
“We will
stay in touch with the ombudsman to see whether staffing is sufficient
to ensure that they can cope with any increase in
work.”—[Official Report, 26 November 2007; Vol.
44, c. 468.]
The Minister said
that the Government discussed capacity with her and that she is
satisfied that she will not be overburdened, but that they will have to
deal with those issues carefully. I hope that he is in a position to
give the Committee firmer figures
today.
It would be
helpful if the Minister could expand on the difference between the
nature of complaints investigation by the Healthcare Commission, and
the nature of complaints handling by the ombudsman, as the latter looks
at maladministration or service failure.
The Committee would
also be reassured if the Government would outline how the winding-up of
the complaints process at the Healthcare Commission, and the handing
over to the ombudsman, will work out. Obviously, local providers will
need time, with the commission in support, to bring their own
complaints systems up to scratch. We cannot have a system whereby the
ombudsman wakes up one morning with 7,000 complaints on her
hands.
Another issue
that the Committee should consider is the lack of a two-tier complaints
structure for social care. Currently, people who have their care part
funded or wholly funded by the local authority can complain through the
local authority social services complaints procedure. That was raised
by my hon. Friend the Member for Tiverton and Honiton in her excellent
example on the previous amendment. If people are dissatisfied with the
outcome of their complaint, they can ask the local government ombudsman
to investigate.
Self-funders have no such
option. They are at the mercy of their own home's complaints procedure,
and have no other avenue apart from the courts. This debate very much
plays back into the ongoing debate that this Committee has had about
human rights—a number of hon. Members throughout the House are
very exercised by that, and rightly so—and the disjunction
between the public and private sectors in this
area.
During a
Westminster Hall debate on vulnerable adults, the Under-Secretary of
State for Health, the hon. Member for Bury, South (Mr.
Lewis),
stated:
“The
problem is that self-funders, of whom there are an increasing number,
have nowhere to go if they are dissatisfied with the way in which the
provider investigates their complaints. The regulator, as things now
stand, does not investigate individual complaints. On receipt of such a
complaint, the regulator can visit the home, examine practices there
and take action, but they cannot investigate the individual complaint.
That is an important distinction. I am committed to considering how
that can be put right. In a modern care system, it is unacceptable that
self-funders should not have the protection
that other residents have of being able to rely on an independent
element in the process, if they are dissatisfied with the handling of a
complaint by the very home that they are complaining
about.”—[ Official Report, Westminster Hall, 11
December 2007; Vol. 469, c.
52WH.] 4.3
pm
Sitting
suspended for a Division in the
House.
4.18
pm
On
resuming—
Mr.
O'Brien:
Before the sitting was suspended, I was referring
to what the Under-Secretary said on 11 December 2007 at column 52 of
the Official Report. It is odd that he should have said that he
was “committed”, as that Westminster Hall debate took
place after the publication of the Bill, whereas in a “File on
4” programme on care homes in September, Alan Urry reported that
the Parliamentary Under-Secretary had
“agreed to look again at the need
for an independent complaints body for families worried about the care
of their loved ones, as he prepares to put in place a new regulatory
regime due in
2009.”
Presumably, that
regulatory regime is the Bill itself.
When interviewed by
Mr. Urry, the Under-Secretary did not seek to disabuse him
of that notion, instead saying
that
“looking at whether
there ought to be a right of appeal if you’re not satisfied with
the way an individual provider has dealt with your complaint or some
sort of independent element in the system of considering
complaints...is something that we will have to consider going
forward.”
The question
remains: on the back of that commitment from the Under-Secretary, if
the Government are serious about tackling the issue why is there
nothing in the Bill? While in-house complaints avenues may work for
large organisations such as hospitals, social care providers are often
too small for an in-house complaints procedure to work. That was borne
out by many of the examples that we have heard from hon. Members. We
know from our constituency casework the strain that many regulatory
regimes—and thus complaints handling by definition—put on
smaller homes. None of us would wish to see a reduction in the capacity
of such homes or of the service they provide in our
constituencies.
Issues
relating to complaints by self-funders in care homes are clearly under
consideration, but there has not yet been any assessment of, or
consultation on, the various options available. Furthermore, an
effective complaints system at local and national level will feed into
better regulation, both in the general guidelines and in the capacity
to provide early warning of specific interventions. This is a well
thought- through and constructive set of amendments and new clauses,
which will give effect to something that, it is broadly accepted, must
be looked at urgently. I am relying very much on the expectation that
the explicit, on-the-record commitment of the Under-Secretary would
lead to something appearing in the Bill. That is why I was anxious to
have this debate on the complaints procedure.
May I ask the Minister what
additional funding is the ombudsman likely to require and what have the
Treasury offered? What length of time does “short-term”
refer to in the ombudsman’s evidence? What is the forecast
increase in her work load? What are the differences between the
Healthcare Commission’s investigation and the ombudsman’s
investigation, which is limited to maladministration or service
failure? How will the Healthcare Commission be wound up and how will it
hand over its complaints function to the CQC? Will the Minister outline
how the new complaints system will feed into an effective alerts system
for the CQC, regarding both broad issues in the sector and problems
with specific providers? What are the Government doing about two-tier
complaints for social care funders? Unless we persuade the
Under-Secretary to accept the amendment there is a danger that he will
renege on his promise to provide solutions in the Bill. Those pertinent
arguments go to the heart of a number of issues that Members from
across the House have raised, so I hope that the amendments and the new
clauses will find favour with the Minister. They were tabled in a
genuine attempt to improve the
Bill.
Kelvin
Hopkins (Luton, North) (Lab): I hope not to speak for very
long as it is late, but I must sound a note of concern about patient
complaints. A number of my hon. Friends, not necessarily members of the
Committee, are concerned about changes in patient representation and
procedures for patients making complaints in recent years. Those
concerns remain, and I may talk about them later in Committee
proceedings.
I am a
member of the Public Administration Committee and the ombudsman reports
to us on a regular basis. She does a first-class job. The
ombudsman’s role is a part of government and our constitution
that works really well. The quality of the reports that come back to
our constituents are first class and better than those produced by most
other institutions. We would not want to see that service diminished or
weakened as a result of the ombudsman being overburdened or
underfunded. I hope that my hon. Friend the Minister will take note of
these concerns, which are shared by other Labour Members.
Sandra
Gidley:
I will make just a few brief points, as we have
heard a fairly detailed explanation of the provisions. Some pertinent
questions have been posed to which I, too, should like to hear the
answers. I share the concerns of the hon. Member for Eddisbury, as it
is vital that we know what assessment has been made of the extra work
load on the ombudsman. I also share the concerns of the hon. Member for
Luton, North. We would not want to see a diminution in the quality of
service provided by the ombudsman. An overriding concern is that if a
complaints procedure is connected with the regulator, that will be an
in-house and reactive arrangement. If there is a stream of related
complaints, that needs to be flagged up quite early in the
process.
I am
concerned that however robust the mechanism that is put in place by the
Government to feed back the ombudsman’s concerns, it will not be
as efficient and responsive as an in-house process. The constant
development that stems from the fact that the commission can deal with
complaints should not be dismissed lightly in the overall picture of
improving health care for our constituents.
Mr.
Brian Jenkins (Tamworth) (Lab): I want to ask the Minister
whether he shares my concerns about this area. We constantly say that
we do not want to get involved with private purchasers of health care.
If one of my constituents goes to a shop and buys a good that is not of
merchandisable quality, they can contact trading standards, which will
intervene on their behalf and ensure that they get something that is
fit for purpose. Why, at the end of their life, when they are in their
most vulnerable position, can they not contact a publicly funded
official who will intervene on their behalf? I know that it is a
difficult area to get into, but I do not think that we should run away
from the problem. A lot of these problems can be solved by early
intervention between the consumer and the provider, without having to
get embroiled in obtaining lawyers and going through a long drawn-out
process. If the Minister could explain why that is the case, I would be
grateful.
Mr.
Bradshaw:
May I begin with the point made by my hon.
Friend the Member for Tamworth? There would be nothing to stop a
self-funder in social care making a complaint to the Care Quality
Commission if the registration requirements of the independent care
home where they are resident are not being met. The Care Quality
Commission could investigate that complain. What we are talking about
is the investigatory role of the Care Quality Commission in taking on
specific
complaints.
On the
point made by the hon. Member for Romsey, there is nothing to stop the
Care Quality Commission analysing a pattern of complaints or having
access to complaints so that it can detect patterns. It will be very
important that the ombudsman works very closely with the Care Quality
Commission if he or she identifies a pattern of complaints that is
worthy of closer inspection and investigation. The dividing line that
we are drawing is between a responsibility for ensuring quality and one
for detecting patterns that might indicate that something more serious
is going on. That would come under the remit of the Care Quality
Commission. It will have to take on the role, which, as we have
discussed, has been burdensome for the existing Healthcare Commission,
of being the second-tier investigator for
complaints.
I do not
know if all hon. Members have had the chance to read the submission
from Ann Abraham, the health care ombudsman. I am grateful to the hon.
Member for Eddisbury for drawing attention to it, because Ann Abraham
strongly supports what we are trying to do in this area. She thinks
that it is very important that there is coherent coverage of both
health and social care; effective handling at local level; a major
cultural shift in the NHS from a defensive application of process to
learning from complaints and a will to resolve them; and a simplified
two-stage process. Both she and the Healthcare Commission have made it
clear that they do not think that complaints handling is an appropriate
role for any regulator.
Ann Abraham also made it clear
that she has plans to ensure that her office is prepared to handle any
increase, from April 2009. She recently restructured her office and is
confident that it will be able to meet the forecast increases in any
workload, and provide an efficient and effective response to demand. I
do not
have the exact figures to hand, but I shall write to the hon. Member for
Eddisbury with them. I stress again that although it will not be the
role of the Care Quality Commission to intervene in individual cases,
it will take account of concerns, complaints and allegations when
determining whether services in the independent and public sectors are
provided safely and are of appropriate
quality. 4.30
pm
On self-funders
in the health care or local authority systems, we are still actively
considering options available to them. The Under-Secretary of State for
Health was right about this. We have only just finished the
consultation on the complaints system and the Government will publish
their response shortly. However, before addressing future changes, or
new avenues available to self-funders, I should repeat what I have said
to colleagues before, which is that self-funders can, of course, take
their custom elsewhere. They can choose civil remedies through the
courts and, as I just mentioned to my hon. Friend the Member for
Tamworth, they can complain to the PCTs or local authorities, from whom
the provider is contracted, about their concerns, if they think that it
has failed in its registration duties. I hope that, given those
assurances, the hon. Member for Eddisbury is able to withdraw his
amendment.
Mr.
O'Brien:
I think the Minister understands the point that
we are driving at. He indicated the seriousness with which he has
listened to our comments. It is clear, therefore, that what the
Under-Secretary of State was saying will not be realised in this Bill,
which is very regrettable. I am sorry that Government timetabling has
not enabled that to happen, because it would have been wholly
appropriate to make it
coincide
I am
concerned about self-funders, although I accept that other avenues are
available. However, those avenues are available not so much because of
the difference between being publicly or self-funded, but because of
the type of remedy available and the sort of expertise and concerns
applicable to a likely complaint. There will be no difference in the
quality of care, or the vulnerability and circumstances of patients,
whether in a health care or residential social care setting, between
those who are publicly and privately funded. The same set of human
circumstances will apply.
The fact that there are
potentially two different outcomes or avenues causes a lot of us deep
concern. We could end up with an unintended consequence—in this
case it might be intended—whereby we have a two-tier system. I
am not talking about ability to pay, because clearly from that point of
view it is a two-tier system—that is what determines the cut-off
point between funding social care through local taxation and
means-tested benefits. In effect, if a person has available assets,
they must use them first. The outcome is a two-tier system for people
with a similar condition. We have an issue with that from a
humanitarian point of
view.
Angela
Browning:
I agree. It often happens in a residential care
setting that we have both sets of people—self-funders and those
funded by social
services. When we discussed a previous amendment, I mentioned the
scenario, which is not uncommon, of somebody who requires nursing care,
but who social services fund at the residential rate in a private home.
People who suffer the same problems can be treated unequally, and that
is a matter of great
concern.
Mr.
O'Brien:
My hon. Friend puts her finger on an instinctive
concern that is probably shared across the Committee. We will try to
grapple our way towards a solution.
It is important to recognise
that the care complaints procedure and potential remedies available to
cared-for people—be that on a health basis or a social care
basis—need to be based on their care concerns, not on their
financial circumstances. That is the underlying sense of this. In the
absence of the Government having picked up on a number of the proposals
on trying to incorporate the rights-based approach—not least
those made by the hon. Member for Luton, North—we have not even
got as our default position the fact that a human being also has
certain rights that carry through irrespective of their financial
circumstances at the start.
Inevitably, those who
have money, if they live long enough and have those care needs for long
enough, will over time get down to the threshold and suddenly go from
private to public. If they are in the same setting, their complaints
procedure will suddenly move from a set of private avenues to a set of
public avenues under the arrangements. There is therefore a legitimate
point, which is causing
concern.
Kelvin
Hopkins:
A number of us have for a long time supported the
concept of free long-term residential care, as recommended by the royal
commission. The Government have not accepted it. I do not think that
the Opposition have accepted it either. I have tabled two early-day
motions, and hope at some point to persuade the Government to do the
good, honest thing, because then all these problems would
disappear.
The
Chairman:
The hon. Member for Eddisbury will not reply to
that, as it has nothing to do with the
amendment.
Mr.
O'Brien:
I am grateful to the hon. Gentleman. I am sure
that we all noted what he said, and we certainly know his long-standing
commitment in this area.
It may be unhelpful at this
point to seek to divide the Committee. I am tempted to do so, because
it would be an earnest expression of the Committee’s intent. The
trouble is that it may put the matter into a more political sphere. If
anyone outside is taking any notice of what we are doing, I think that
this is the sort of issue which people would regard as being of such
key interest that we need to rise above party politics or
Government-bashing, or whatever it is.
I really do want to give the
Government and this Minister the benefit of the doubt. I hope, however,
that the earnest and sincere representations that have been made are
now going to be taken away by him and his officials and thought through
extremely carefully, because we have a right to expect something
constructive to appear on Report. It would be helpful if it were in the
Government’s name, but we will also pursue this. To seek to
divide the Committee would inevitably put those on the Government
Benches in the embarrassing position of having to decide whether they
support their sentiment or their party. Rather than forcing the issue
in that way, I hope that I have set the context that makes my
withdrawal of the amendment possible. I have very high expectations
that the Minister will satisfy me and others at a later date. I beg
leave to ask to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Bradshaw:
I beg to move amendment No. 153, in
schedule 5, page 129, line 30, at
end
insert—
‘Public
Audit (Wales) Act 2004
(c. 23)
In section 62 of the
Public Audit (Wales) Act 2004 (co-operation), for paragraph (c)
substitute—
“(c)
the Care Quality
Commission,”.
In section
64 of the Public Audit (Wales) Act 2004 (provision of information by
CHAI)—
(a) in subsection
(1), for “The Commission for Healthcare Audit and
Inspection” substitute “The Care Quality
Commission”,
(b) in
subsection (2), for the words from “section 136” to the
end substitute “section 70 of the Health and Social Care Act
2008 (disclosure of confidential personal information:
offence).”, and
(c) for
subsection (3)
substitute—
“(3)
In this
section—
“English
NHS body” has the meaning given by subsection (1) of section 90
of that Act;
and
“cross-border
SHA” means a cross-border Special Health Authority as defined by
that
subsection.”’.
The
Chairman:
With this it will be convenient to discuss the
following: Government amendments Nos. 154 and
155.
Government new
clause 14—Provision of information by Auditor General for
Wales.
Mr.
Bradshaw:
The amendment, further consequential amendments
and new clause relate to
Wales.
Mr.
O'Brien:
I think it is only right to say formally that we
note the amendments, which are a result of the discussions that have
been confirmed to have been concluded with those who are responsible
for devising the way forward for Welsh Ministers under the provisions
of the Bill.
In
passing, I note that when we last voted on Government
amendments—no doubt, I could have it confirmed by a
nod—only those up to amendment No. 192 were made. I suspect that
amendments Nos. 193 and 194 come later under schedule 15. That makes
more sense in respect of what we are dealing with. On that basis, we
are not raising any
objections.
Amendment
agreed
to.
Amendment
made: No. 154, in
schedule 5, page 129, line 30, at
end
insert—
‘Health
Act 2006 (c. 28)
In
section 61 of the Health Act 2006 (Commission to exercise Welsh
Ministers’ appointment functions), omit “the Commission
for Healthcare Audit and Inspection or”.
In Schedule 5 to the Health Act 2006 (list of
statutory bodies referred to in section
58(3))—
(a) omit the entry for the
Commission for Healthcare Audit and Inspection and the entry for the
Commission for Social Care Inspection,
and
(b) at the appropriate
place
insert—
“The Care
Quality Commission.”’.—[Mr.
Bradshaw.]
Schedule
5
, as amended,
agreed
to.
| 
