Health Bill [HL]

House of Commons

Session 2008 - 09
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Health Bill [HL]

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
63

(6)
Where a Local Commissioner is consulted about a complaint under
the PCA 1967 by virtue of subsection (5), subsection (3) applies (with
the necessary modifications) as it applies in relation to consultations
held by virtue of subsection (2).
(7)
Nothing in the following provisions applies in relation to the
5
disclosure of information in the course of consultations held in
accordance with this section—
(a)
section 11(2) of the PCA 1967;
(b)
section 15 of the HSCA 1993;
(c)
section 19 of the SPSOA 2002;
10
(d)
section 26 of the PSOWA 2005;
(e)
section 34K(1) of this Act.
34N
Collaborative working with other Commissioners
(1)
If, at any stage in the course of an investigation under this Part, a
Local Commissioner forms the opinion that the matters which are
15
the subject of the investigation include a matter within the
jurisdiction of—
(a)
the Parliamentary Commissioner,
(b)
the Health Service Commissioner, or
(c)
both,
20

the Local Commissioner may conduct an investigation under this
Part jointly with that Commissioner or those Commissioners.
(2)
A Local Commissioner must obtain the consent of the person
affected or the complainant (if any) before agreeing to a joint
investigation referred to in subsection (1).
25
(3)
If a Local Commissioner forms the opinion that a complaint being
investigated by—
(a)
the Parliamentary Commissioner,
(b)
the Health Service Commissioner, or
(c)
both,
30

relates partly to a matter within the Local Commissioner’s
jurisdiction by virtue of this Part, the Local Commissioner may
conduct an investigation under this Part jointly with that
Commissioner or those Commissioners.
(4)
If a Local Commissioner conducts an investigation jointly with
35
another person, the requirements of section 34H(1)(c) and (5) (so far
as relating to a case where the Local Commissioner conducts an
investigation under this Part) may be satisfied by a statement or
report made jointly with that person.
34O
Disclosure of information by Local Commissioner to Information
40
Commissioner
(1)
A Local Commissioner may disclose to the Information
Commissioner any information obtained by, or furnished to, the
Local Commissioner under or for the purposes of this Part if the
information appears to the Local Commissioner to relate to—
45
(a)
a matter in respect of which the Information Commissioner
could exercise any power conferred by—

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
64

(i)
Part 5 of the Data Protection Act 1998 (enforcement),
(ii)
section 48 of the Freedom of Information Act 2000
(practice recommendations), or
(iii)
Part 4 of that Act (enforcement), or
(b)
the commission of an offence under—
5
(i)
any provision of the Data Protection Act 1998 other
than paragraph 12 of Schedule 9 (obstruction of
execution of warrant), or
(ii)
section 77 of the Freedom of Information Act 2000
(offence of altering etc. records with intent to prevent
10
disclosure).
(2)
Nothing in section 34K(1) applies in relation to the disclosure of
information in accordance with this section.
34P
Disclosure of information by Local Commissioner to Care Quality
Commission
15
(1)
A Local Commissioner may disclose to the Care Quality Commission
any information obtained by, or furnished to, the Local
Commissioner under or for the purposes of this Part if the
information appears to the Local Commissioner to relate to a matter
in respect of which the Care Quality Commission has functions
20
under any enactment.
(2)
Nothing in section 34K(1) applies in relation to the disclosure of
information in accordance with this section.
General
34Q
Arrangements etc. to be made by Commission
25
(1)
The Commission must—
(a)
divide the matters which may be investigated under this Part
into such categories as it considers appropriate, and
(b)
allocate, or make arrangements for allocating, responsibility
for each category of matter to one or more of the Local
30
Commissioners.
(2)
The Commission—
(a)
must make arrangements for Local Commissioners to deal
with matters for which they do not have responsibility
pursuant to subsection (1), and
35
(b)
must publish information about the procedures for making
complaints under this Part.
34R
Review, recommendations, advice and guidance
(1)
In each financial year in which the Commission conducts a review
under section 23(12), it must also review the operation (since the last
40
review was made under this subsection) of the provisions of this Part
about the investigation of matters.
(2)
The Commission may convey to government departments and the
Care Quality Commission any recommendations or conclusions
reached in the course of a review under subsection (1).
45

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
65

(3)
The Commission may—
(a)
provide to adult social care providers or any adult social care
provider such advice and guidance about good practice as
appears to the Commission to be appropriate, and
(b)
arrange for the advice and guidance to be published for the
5
information of the public.
(4)
Before providing advice or guidance under subsection (3) the
Commission must consult such persons as appear to it to be
appropriate.
34S
Annual reports
10
(1)
Every Local Commissioner must for each financial year—
(a)
prepare a general report on the discharge of the Local
Commissioner’s functions under this Part, and
(b)
submit it to the Commission not later than 2 months after the
end of the year to which it relates.
15
(2)
The Commission must for each financial year prepare a general
report on the discharge of its functions under this Part (the “Part 3A
annual report”).
(3)
The Part 3A annual report must be prepared as soon as may be after
the Commission has received the reports for the year from Local
20
Commissioners under subsection (1).
(4)
The Commission must arrange for the publication of—
(a)
the Part 3A annual report, and
(b)
the reports which are submitted under subsection (1).
(5)
The Commission must lay a copy of the Part 3A annual report before
25
Parliament.
34T
Interpretation of Part 3A
(1)
In this Part—
“adult social care” and “adult social care provider” have the
meanings given by section 34A;
30
“Health Service Commissioner” means the Health Service
Commissioner for England;
“the HSCA 1993” means the Health Service Commissioners Act
1993;
“the PCA 1967” means the Parliamentary Commissioner Act
35
1967;
“person affected”—
(a)
in relation to a matter which is the subject of a
complaint made or to be made under this Part, means
a member of the public who claims or is alleged to
40
have sustained injustice in consequence of the matter,
and
(b)
in relation to a matter coming to the attention of a
Local Commissioner to which section 34E applies,
means the member of the public who the Local
45
Commissioner considers has, or may have, sustained
injustice in consequence of the matter;

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 2 — Minor and consequential amendments
66

“the PSOWA 2005” means the Public Services Ombudsman
(Wales) Act 2005;
“the SPSOA 2002” means the Scottish Public Services
Ombudsman Act 2002.
(2)
The following terms have the same meaning in this Part as they have
5
in Part 3—
(a)
action (and other expressions connoting action) (see section
34);
(b)
the Commission (see section 34);
(c)
local authority (see section 34);
10
(d)
Local Commissioner (see section 23(3));
(e)
Parliamentary Commissioner (see section 34).
(3)
Section 34(1A) applies for the purposes of this Part as it applies for
the purposes of Part 3.”
3
After Schedule 5 (matters not subject to investigation) insert—
15
“Schedule 5A
Section 34B

Matters not subject to investigation under Part 3A
1
A matter which could be the subject of an investigation by a Local
Commissioner under Part 3.
2
A matter which could be the subject of an investigation by the
20
Health Service Commissioner under the HSCA 1993.
3
The commencement or conduct of civil or criminal proceedings
before any court of law.
4
Action taken in respect of appointments or removals, pay,
discipline, superannuation or other personnel matters.”
25
Part 2
Minor and consequential amendments
Local Government Act 1974 (c. 7)
4
Part 3 of the Local Government Act 1974 is amended as follows.
5     (1)
Section 23 (the Commission for Local Administration) is amended as
30
follows.
      (2)
In subsection (1), after “this Part” insert “and Part 3A”.
      (3)
In subsection (11), after “functions” insert “(other than those under Part 3A
of this Act)”.
6
In section 23A(1) (annual reports for representatives etc.), after “functions”
35
insert “(other than those under Part 3A of this Act)”.
7
In section 26D(1)(a) (matters coming to attention of Local Commissioner),
after “this Part” insert “or Part 3A”.

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 2 — Minor and consequential amendments
67

8     (1)
Section 29 (investigations under Part 3: further provisions) is amended as
follows.
      (2)
For subsection (5) substitute—
“(5)
Nothing in subsection (1) or subsection (3) above affects the
restriction imposed by section 26 of the Public Services Ombudsman
5
(Wales) Act 2005.”
      (3)
In subsection (6A), after “under this” insert “Part of this”.
9
In section 30(1) (reports on investigations under Part 3), after “matter” insert
“under this Part of this Act”.
10
In section 32(2) (law of defamation), after paragraph (a) insert—
10
“(aza)
for the purposes of an investigation under Part 3A of this Act
and of any statement, adverse findings notice or summary
under section 34H, 34I or 34J in relation to such an
investigation; or”.
11    (1)
Section 33ZA (collaborative working between Local Commissioners and
15
Other Commissioners) is amended as follows.
      (2)
In subsection (1), after “under this” (in both places where it occurs) insert
“Part of this”.
      (3)
In subsection (3)—
(a)
after “his jurisdiction” insert “by virtue of this Part”,
20
(b)
after “under this” insert “Part of this”.
      (4)
In subsection (4), after “under this” insert “Part of this”.
12
In Schedule 4 (the Commission), in paragraph 1, after sub-paragraph (2)
insert—
   “(2A)
A Local Commissioner shall not conduct a case which involves an
25
adult social care provider if the Local Commissioner has a
financial or other interest in the provider which is likely to affect
prejudicially the exercise of his functions.
     (2B)
In sub-paragraph (2A) “adult social care provider” has the same
meaning as in Part 3A of this Act.”
30
Health Service Commissioners Act 1993 (c. 46)
13
In section 18(1)(c) of the Health Service Commissioners Act 1993
(consultations during investigations), after “Part III” insert “or 3A”.
Freedom of Information Act 2000 (c. 36)
14
In section 76 of the Freedom of Information Act 2000 (disclosure of
35
information between Commissioner and ombudsmen), in the Table, in the
second column, after “Part III” insert “or Part 3A”.
Scottish Public Services Ombudsman Act 2002 (2002 asp 11)
15
In section 21(1)(d) of the Scottish Public Services Ombudsman Act 2002
(consultation and cooperation with other Commissioners and
40
Ombudsmen), after “Part III” insert “or 3A”.