Memorandum submitted by Commission for Social Care Inspection (H&SC 5)
HEALTH AND SOCIAL CARE BILL
PUBLIC BILL COMMITTEE
Submission of Written Evidence by the Commission for Social Care Inspection
About the Commission for Social Care Inspection
1. The Commission for Social Care Inspection was created in 2004 as the single, independent inspectorate and regulator for all social care services in England. Following the Education and Inspections Act 2006, the majority of the Commission's responsibilities for children's social care services have passed to the new Ofsted.
2. The Commission has a general function to encourage improvement in social care services for adults in England, in local councils and in the private and voluntary social care sectors. We aim to put the people who use care services at the heart of everything we do.
3. In addition to our work on assessing the performance of local councils and the regulation of care services for adults, CSCI has a statutory duty to report annually to Parliament on the State of Social Care in England. Our most recent State of Social Care report, published in January 2007, highlighted not only the progress made in improving social care in England but also the areas where work is still needed. Furthermore, the Commission noted that local councils were continuing to raise their eligibility criteria for access to services and called for a debate on the relative contribution to the costs of social care by the state, families and individuals. Next year's report (to be published in January 2008) will include accounts of the experiences of those who are ineligible for council-arranged services and/or who fund their own social care. We also make a range of other reports and studies on issues relating to social care (for example, our recent report on private investment in social care, our "Fair Contracts" report and "Time to Care" our report on domiciliary care). We also produce a range of publications such as our Quality Improvement Bulletins which social care providers find helpful in driving up standards in provision.
4. The Chair of the Commission is Dame Denise Platt DBE and the Chief Inspector is Mr Paul Snell.
5. The Government intends to create a new social care and health regulator, the Care Quality Commission, bringing together the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission via the Health and Social Care Bill in this Parliamentary session. The Bill was introduced in the Commons on 15 November 2007.
6. The Bill is likely to complete its Parliamentary stages and receive Royal Assent by the summer of 2008.
7. The Government intend (subject to the passage of the legislation) that the Care Quality Commission will be established in October 2008 and will take on its full powers from April 2009. The Government also intends that full implementation of the new regulatory framework for social care and health providers will take place from April 2010.
The Care Quality Commission
8. The proposed new Care Commission will have a very broad remit. It will be responsible for assessing and inspecting the safety and quality of services which together:
· Account for some 30% - around £105bn - of discretionary public expenditure in 2007-08 plus significant private expenditure on adult social care and healthcare (where approximately one-third of people fund their own social care);
· Employ some 2.9 million people, also across the public, private and voluntary sectors;
· Are delivered through well over 30,000 individually registered care and health services, in the public, private and voluntary sectors. Some 24,000 of those are in the social care sector, the vast majority of which are small or medium sized enterprises.
CSCI's Overall Position on the Merger
9. The Commission's public statements to date have been to regret the timing of the 'merger' because there has not been sufficient time to bed down the new regulatory system and given that this will be the third change in social care regulator in 2002.
10. However, CSCI does recognise that a new regulator will be established, subject to Parliamentary approval. Accordingly CSCI wishes to ensure that social care continues to have a strong voice and that the new body has the best possible structure to facilitate this. We also want to ensure that the legislation provides a firm foundation for changes already proposed e.g. the new Comprehensive Area Assessments. We particularly support the Secretary of State for Health in his view that social care should be placed at the heart of the new body. As he said in the debate on Second Reading:
"My hon. Friend [Joan Humble MP] raises the crucial issue with regard to the plan to merge the three current regulators. Social care must have parity in the new commission. That must be reflected on the board of the new commission and in everything that the commission does. I am pleased that she has given me the opportunity to reassert that that is the case, and that it needs to be the case. That point will be emphasised throughout the passage of the Bill."
11. We agree and express our position on the Bill in terms of risks to avoid and ways in which it can be improved upon to help the Government achieve this objective.
12. We welcome our work with the Department of Health on delivering a new approach to social care and health regulation and we also welcome the positive changes the Government has made to its original proposals. For example, we are pleased to see that the new Commission will have the power to assess and comment upon both social care and health commissioning and we also welcome the enhancement of some enforcement powers.
13. However, we have four themes which we hope Parliament will consider in its assessment of the Bill. These are that the new Commission should:
A. Retain a strong social care focus
B. Build on existing progress
C. Take a rights based approach to all its activities
D. Retain independence.
These points are set out in full, below.
A. The New Body Should Retain a Strong Social Care Focus
14. Whilst there are good arguments that as services seek to become more integrated, the regulation of social care and health should also become more integrated, we have strong concerns that such a "marrying up" is done in a way that avoids health issues becoming the main focus of the new body, to the detriment of social care issues. It might be that constructive ways of doing this could be placed on the face of the Bill. For instance, specific posts or roles on the Board and in the senior management of the new Commission could have specific responsibilities for focussing on social care matters; perhaps in the same manner as the Equalities Act 2006 deals with the structure and appointments to the Equalities and Human Rights Commission.
15. Another example of concern in this area relates to the funding of any additional duties - going beyond those of the current Commissions - given to the Care Quality Commission. Unless these duties are separately and adequately funded (such as any stemming from the current focus on the cleanliness of hospitals), this could result in already tight resources having to be moved from social care to health care related work; this is discussed in more detail at paragraphs 35 to 37.
16. As Baroness Pitkeathley said in the debate in the Lords on the Queen's Speech:
"...CSCI has a fine record in making the views of users and carers not just known but central to its functioning. We must ensure that this continues with the new body. It will have a smaller budget, but this is one area where we must not cut corners. We must remain concerned that the institutional attention of the new body does not become entirely focused on healthcare at the expense of social care and that resources are balanced accordingly."
17. We also have concerns that having a unified approach to the registration of both social care and health bodies may cause difficulties in practice. While similar principles can be applied there may be legitimate reasons for different systems arising from them. A large acute hospital is a very different type of concern to a small domiciliary care agency although the registration regulations and the guidance developed by the new Commission will need to cover both. In addition, the vast majority of the 24,000 social care providers are small or medium sized enterprises in contrast to the large hospital based providers. For example, implementing a code of practice for health care associated infections will clearly be of more importance and a bigger challenge for the NHS than for care home providers or domiciliary care provision, yet the Bill does not differentiate clearly between the two.
B. The New Body Should Build on Existing Progress
18. In its response to the consultation on The Future Regulation of Health and Adult Social Care in England, the Government made clear its wish that the new Commission should carry forward and build on the progress which CSCI has made in the last three years. For example, CSCI has always taken a regulatory approach that is fully committed to putting the views and experiences of those who use social care services, and their families and carers, at the centre of our work, as evidenced by such activities as our "Experts by Experience" programme.
19. As Baroness Howarth of Breckland said in the Lords debate on the Queen's Speech:
"We need a regulator who, apart from monitoring existing services...has the same commitment to users as the Commission for Social Care Inspection has demonstrated under the leadership of Dame Denise Platt. Progress since the Commission's inception has been strong, with an increase in 2005-06-for the fourth consecutive year-in the average percentage of minimum standards met in the services inspected by the commission...As the Healthcare Commission merges into the new super-regulator, the Care Quality Commission, I would ask the House to ensure that, in its consideration of the Bill at all stages, the voice of social care is strongly maintained and carried forward. It would be wrong not to note that there are serious concerns in the social care and voluntary sectors about the proposed merger. Too many people are closely affected by these services."
20. And as Baroness Pitkeathley continued:
"...the Commission for Social Care Inspection has been of the utmost importance in championing social care, highlighting successes and failings and providing a strategic lead for the whole sector. The...[new Bill]...will require all providers of health and social care to be registered and a consistent approach to regulation and inspection will no doubt bring benefits to patients and to service users. But we must ensure that the expertise built up by CSCI and shown to such advantage in reports such as The State of Social Care in England, published in January this year, is not lost."
21. We believe the Bill should ensure not only that all of CSCI's current powers and functions are taken forward, but also that the positive work that CSCI has carried out over the last three years is protected and indeed developed further. We want to ensure that the 2003 Act is built upon in the light of CSCI's experience. Simply carrying over the powers outlined in CSCI's enabling Act, whilst welcome, may not be sufficient to do so especially if the focus of the new body is dominated by health issues.
22. Some of these concerns can only be allayed once the approach and culture of the new regulator become clearer. Another specific action in this context might be to ensure that the structure of the new Commission is such that it represents people with both social care and health interests.
C. The New Body Should Take a "Rights Based Approach"
23. CSCI believes, in line with general Government policy, that the new regulator should take a strong rights based approach towards the people who use social care and health services. The new Commission should place the rights of all people who use services and their carers at the heart of its work and we would want to ensure that this approach is properly reflected in the legislation.
24. The Joint Committee on Human Rights in its recent report made the following recommendation:
"We recommend that the forthcoming merged inspectorate for health, social care and mental health adopts a human rights framework with the intention that the framework informs all of the inspectorate's work and so makes it more effective in fulfilling its statutory duties."
25. While the Bill is strictly Human Rights Acts compliant in its provisions (as it has to be) there may be areas where a human rights focus for the new Commission in organisational terms could be strengthened, for example, by the provision of particular Committees on the face of the Bill or possibly by the statutory appointment of a Human Rights Director.
D. The New Body Should Retain Its Independence
26. The Bill essentially sets a broad framework and delegates many detailed matters to secondary legislation. It also requires Ministerial approval for a substantial range of matters. Taken together, these requirements appear to diminish the independence of the Care Commission when compared to the three Commissions it will replace.
27. Our experience is that the current arrangements with the Department of Health work well. DH is CSCI's sponsor department and is accountable to Parliament for our work as well as agreeing our overall budget annually and regularly monitoring the delivery of our corporate objectives. However, we want to ensure that the new body remains an independent regulator rather than becoming more like a typical "arms length" body with many of the decisions about how it operates being made indirectly by Ministers or Officials.
Specific Issues for Consideration
28. On some parts of the Bill we have some more detailed points to make.
Independent Studies, Reviews and Reports
29. We welcome the fact that a continued power to make independent studies, reviews and reports (in addition to the annual "State of Social Care Report") will be maintained without the need for Secretary of State approval. We believe that the new regulator should have this power "commenced" at the inception of the new body, i.e. from April 2009 when it takes on its full functions.
30. CSCI considers that such reports are crucial in providing an evidence base for driving up social care standards and quality across the piece and are crucial to reporting fully on the State of Social Care. It is arguable that the Chair and Board of the new Commission would be best placed to decide what reports the new body should make and when it should make them taking account of DH views but not reliant on direct approval. To do otherwise would seem to undermine the independence of the new regulator. And it is only by exercising its independence that such a regulator can be of service to the public and support improvement in the sectors. Indeed, within its first year of operation CSCI carried out three major reports while dealing with its own establishment and reviewing the way it carried out its nascent regulatory functions.
The New Chair and Commission Members
31. The CSCI submission to the consultation on the Governance of Britain Green Paper made the following points:
"The Green Paper suggests a greater role for select committees in the recruitment process for certain public appointments. We agree that greater scrutiny will increase both accountability and transparency and welcome this proposal. We believe that the posts of Chair and Chief Executive/Chief Inspector of Ofcare [as it then was] sit very well within these proposed arrangements and should be subject to such pre-appointment Parliamentary scrutiny."
32. While decisions on which positions across the public sector this new scrutiny will apply to will be made in consultation with appropriate Departments - given the size and importance (to the people who use services) of the new regulator - we believe that Select Committees should have a role in these appointments.
33. We believe that the new body should be fully representative of social care as well as health. We also think that the new Commission needs to place the people who use services, their families and their carers at the heart of what it does. We are not convinced that the current proposal for an Advisory Committee in itself goes far enough to achieve this.
34. Our response to the consultation also made the following points on the governance of the new Commission:
"There is also the more specific governance issue that, in our view, the Care Quality Commission should have a non-executive Commission to set strategic direction and hold the senior management to account.
This model has worked very well for CSCI and it provides welcome clarity as to roles and accountabilities. We do not regard other models, such as unitary Boards with both non-executives and executives as full members, as providing the same degree of clarity and accountability. The non-executive Commission model would also, it seems to us, be more in line with the 'Independent Regulators' report by the Better Regulation Task Force and current Cabinet Office guidance on Non-Departmental Public Bodies."
Resourcing the new Care Commission
35. The Government continues to bear down hard on the resources available to CSCI and the Healthcare Commission (whether from Government grant or provider fees). CSCI itself will have reduced its recurrent operating costs by 33% in real terms between 2004 and 2009. The Government has also said that the new body will have to operate on a substantially smaller budget than the combined current budgets of CSCI, the Healthcare Commission and the Mental Health Act Commission.
36. We are concerned that this will place the new regulator on a very challenging financial footing from the outset. In addition, we would want to ensure that, whenever a fresh duty or new function is given to the new body (for example around the new duties around hospital acquired infections and registering NHS bodies), the Government provides new resources to fund the additional activity.
37. Some of the powers for the new Commission are permissive rather than being mandatory. In a tight financial context the Care Commission may not be able to allocate funds to permissive powers.
38. The provision of Clauses 114 and 115 of the Bill give powers to the Secretary of State to make regulations to determine which category of staff within the social care workforce should be registered by the General Social Care Council (GSCC). We welcome the provision by which only those social care staff who are not registered elsewhere will be within the scope of the regulations.
39. However, there are some implications for the Care Quality Commission around compliance and enforcement. Whilst registration seems to be an individual responsibility, it may fall to the new Commission to monitor employer compliance with GSCC registration requirements; for example that all domiciliary care staff should be registered. This has further resource implications.
The Extension of Direct Payments
40. We support the extension of direct payments to people who lack capacity or may have fluctuating capacity. The safeguards, that payments should be made with 'requisite consent' to a 'suitable person', although complex, seem appropriate.
Local Involvement Networks
41. The Local Government and Public Involvement in Health Act 2007 sets up Local Involvement Networks and gives them powers to enter and view certain premises. It also gives them powers to make reports and recommendations to commissioning authorities.
42. The Health and Social Care Bill stipulates that the new Commission must have regard to the views of the public about services, and also focus on the needs of those for whose benefit the activities (i.e. the services) are carried out. It also gives specific duties to publish reports, but it does not give a specific duty to consult. Some other bodies in the Bill are given specific duties to inform and consult (e.g. the Office of the Health Professions Adjudicator and the Council for Healthcare Regulatory Excellence).
43. It would be useful if there were an explicit expectation that the new Care Commission had a relationship with Local Involvement Networks.
44. The Commission believes that its policy in respect of complaints about care services regulated under the Care Standards Act 2000 provides an appropriate framework for adoption by the new Commission. All information received about regulated care services, including concerns, complaints and allegations, is of crucial importance to any modern and proportionate regulator. However, the role of a regulator in such instances is to ensure the compliance of the provider with their statutory obligations and where necessary to take enforcement action to ensure the quality and fitness of the care service, not to facilitate remedy and redress for parties in dispute where no regulatory breach has been identified. The provision of complaints investigation and mediation services focused on personal resolution and closure are not an appropriate role for a regulator, and indeed statutory complaints procedures and the public service ombudsman are empowered by statute to address this particular need.
45. Where the question of people who arrange and fund their own care is concerned, the Commission has lobbied the Department of Health to address the existing policy gap in social care and health complaints policy. The Commission also supports the proposals of the Department concerning a merged statutory social care and health complaints process where the question of the role of the future regulator is concerned, namely that it should be responsible for the assessment and evaluation of the fitness of complaints processes and systems, and not the investigation of individual matters of complaint.
46. A large number of more detailed matters will also not be on the face of the Bill but will be governed by secondary legislation. For example, the work on a new system of registration requirements with which providers must comply still has a long way to go. A consultation is promised on this, to which we will contribute fully in the light of our experience of the current regulatory regime. The new body needs to be focused on outcomes for people that use services and reflect the interests of stakeholders.
 Commons Hansard 26 Nov 2007 : Col 38
 Lords Hansard 8 Nov 2007 Col 166
 Lords Hansard 8 Nov 2007 Col 189
 Lords Hansard 8 Nov 2007 Col 166
 Health and Social Care (Community Health and Standards) Act 2003
 Joint Committee on Human Rights, 18th Report, at paragraph 190
 e.g. Clause 45 allows regulations by the Secretary of State for reviews of regulated services where this is currently possible directly under the 2003 Act; Clause 57 also requires regulations for the frequency of inspections of regulated activities and the methods to be used (57(1)(b)).