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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

56

 

(3)   

A Local Commissioner may disapply the requirement in subsection

(1)(b) in relation to a particular matter.

Investigations by a Local Commissioner

34F     

Procedure in respect of investigations

(1)   

A Local Commissioner who proposes to investigate a matter under

5

this Part must give the following persons an opportunity to comment

on the matter—

(a)   

the adult social care provider concerned;

(b)   

any person who is alleged in the complaint (if any) to have

taken or authorised the action which would be the subject of

10

the investigation;

(c)   

any person who otherwise appears to the Local

Commissioner to have taken or authorised that action.

(2)   

Every investigation under this Part is to be conducted in private.

(3)   

Subject to subsection (2), the procedure for conducting an

15

investigation is to be such as the Local Commissioner considers

appropriate in the circumstances of the case.

(4)   

The Local Commissioner may, in particular—

(a)   

obtain information from such persons and in such manner as

the Local Commissioner thinks fit,

20

(b)   

make such inquiries as the Local Commissioner thinks fit,

and

(c)   

determine whether any person may be represented (by

counsel, solicitor or otherwise) in the investigation.

(5)   

The Local Commissioner may, if the Local Commissioner thinks fit,

25

pay to the person by whom the complaint (if any) was made, and to

any other person who attends or furnishes information for the

purposes of an investigation under this Part—

(a)   

sums in respect of the expenses properly incurred by them;

(b)   

allowances by way of compensation for the loss of their time.

30

34G     

Investigations: further provisions

(1)   

For the purposes of an investigation under this Part a Local

Commissioner may require the following persons to furnish

information or produce documents relevant to the investigation—

(a)   

the adult social care provider concerned;

35

(b)   

any other person who in the Local Commissioner’s opinion is

able to furnish any such information or produce any such

documents.

(2)   

Nothing in subsection (1) affects the restriction imposed by section

26 of the PSOWA 2005.

40

(3)   

For the purposes of an investigation under this Part a Local

Commissioner has the same powers as the High Court in respect of—

(a)   

the attendance and examination of witnesses, and

(b)   

the production of documents.

 
 

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

57

 

(4)   

To assist in any investigation, a Local Commissioner may obtain

advice from any person who in the Local Commissioner’s opinion is

qualified to give it.

(5)   

A Local Commissioner may pay to any such person giving advice

such fees or allowances as the Local Commissioner may determine.

5

(6)   

A Local Commissioner may appoint and pay a mediator or other

appropriate person to assist in the conduct of an investigation under

this Part.

(7)   

Any person appointed under subsection (6) is to be deemed to be an

officer of the Commission in carrying out functions under that

10

appointment.

(8)   

No person may be compelled for the purposes of an investigation

under this Part to give any evidence or produce any document which

the person could not be compelled to give or produce in civil

proceedings before the High Court.

15

(9)   

If any person without lawful excuse—

(a)   

obstructs a Local Commissioner in the performance of the

Local Commissioner’s functions under this Part,

(b)   

obstructs any person discharging or assisting in the discharge

of those functions, or

20

(c)   

is guilty of an act or omission in relation to an investigation

under this Part which, if that investigation were a proceeding

in the High Court, would constitute contempt of court,

   

the Local Commissioner may certify the offence to the High Court.

(10)   

Where an offence is so certified, the High Court may inquire into the

25

matter and, after hearing any witnesses who may be produced

against or on behalf of the person charged (“D”), and after hearing

any statement that may be offered in defence, deal with D in any

manner in which the High Court could deal with D if D had

committed the like offence in relation to the High Court.

30

Statements etc. about investigations

34H     

Statements about investigations

(1)   

A Local Commissioner must prepare a written statement in

accordance with subsections (2) to (4) if the Local Commissioner—

(a)   

decides not to investigate a matter under this Part,

35

(b)   

decides to discontinue such an investigation, or

(c)   

completes such an investigation.

(2)   

In a case falling within subsection (1)(a) or (b), the statement must set

out the Local Commissioner’s reasons for the decision.

(3)   

In a case falling within subsection (1)(c), the statement must—

40

(a)   

set out the Local Commissioner’s conclusions on the

investigation, and

(b)   

include any recommendations the Local Commissioner

considers it appropriate to make.

 
 

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

58

 

(4)   

The recommendations the Local Commissioner may make are

recommendations with respect to action which, in the Local

Commissioner’s opinion, the adult social care provider concerned

should take—

(a)   

to remedy any injustice sustained by the person affected in

5

consequence of the action of the provider which was the

subject of the investigation, and

(b)   

to prevent injustice being caused in the future in consequence

of similar action of the provider.

(5)   

The Local Commissioner must send a copy of a statement prepared

10

under this section to each of the persons concerned.

(6)   

The persons concerned are—

(a)   

the complainant (if any);

(b)   

the adult social care provider concerned;

(c)   

any person who is alleged in the complaint (if any) to have

15

taken or authorised the action which was the subject of the

investigation;

(d)   

any person who otherwise appears to the Local

Commissioner to have taken or authorised such action.

(7)   

The Local Commissioner may send a copy of a statement prepared

20

under this section to—

(a)   

the Care Quality Commission, and

(b)   

any local authority which appears to the Commissioner to

have an interest in the subject matter of the statement.

(8)   

The statement must identify the adult social care provider concerned

25

unless—

(a)   

the provider is an individual, or a particular individual

would, in the opinion of the Local Commissioner, be likely to

be identified as a result of identifying the provider, and

(b)   

the Local Commissioner considers that it is not appropriate

30

for the individual to be identified.

(9)   

The statement must not—

(a)   

mention the name of any person other than the provider, or

(b)   

contain any particulars which, in the opinion of the Local

Commissioner, are likely to identify any other person and

35

can be omitted without impairing the effectiveness of the

statement,

   

unless, after taking into account the public interest as well as the

interests of that person, the complainant (if any) and of other

persons, the Local Commissioner considers it necessary to mention

40

the name of that person or to include in the statement any such

particulars.

34I     

Adverse findings notices

(1)   

This section applies where an adult social care provider receives a

statement prepared under section 34H which contains

45

recommendations.

(2)   

The adult social care provider concerned must—

 
 

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

59

 

(a)   

consider the statement, and

(b)   

notify the Local Commissioner within the required period of

the action which the provider has taken or proposes to take.

(3)   

The Local Commissioner may by notice require the provider to

arrange for an adverse findings notice to be published in accordance

5

with subsections (4) and (5) if the Local Commissioner—

(a)   

does not receive the notification mentioned in subsection

(2)(b) within the required period or is satisfied before the end

of that period that the adult social care provider concerned

has decided to take no action,

10

(b)   

is not satisfied with the action which the provider concerned

has taken or proposes to take, or

(c)   

does not within a period of one month beginning with the

end of the required period, or such longer period as the Local

Commissioner may agree in writing, receive confirmation

15

that the provider has taken action, as proposed, to the

satisfaction of the Local Commissioner.

(4)   

An adverse findings notice is a notice, in such form as the adult social

care provider concerned and the Local Commissioner may agree,

consisting of—

20

(a)   

details of any action recommended in the statement which

the provider has not taken;

(b)   

such supporting material as the Local Commissioner may

require;

(c)   

if the provider so requires, an explanation of the provider’s

25

reasons for having taken no action on, or not the action

recommended in, the statement.

(5)   

The adverse findings notice must be published by the adult social

care provider in such manner as the Local Commissioner may direct.

(6)   

If the adult social care provider—

30

(a)   

fails to arrange for the publication of the adverse findings

notice in accordance with subsections (4) and (5), or

(b)   

is unable, within the period of one month beginning with the

date on which the provider received the notice under

subsection (3), or such longer period as the Local

35

Commissioner may agree in writing, to agree with the Local

Commissioner the form of the adverse findings notice to be

published,

   

the Local Commissioner must arrange for an adverse findings notice

to be published in such manner as the Local Commissioner considers

40

appropriate.

(7)   

The adult social care provider concerned must reimburse the

Commission on demand any reasonable expenses incurred by the

Local Commissioner in performing the duty under subsection (6).

(8)   

In this section the “required period” means—

45

(a)   

the period of one month beginning with the date on which

the adult social care provider concerned received the

statement, or

 
 

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

60

 

(b)   

such longer period as the Local Commissioner may agree in

writing.

34J     

Publication of statements etc. by Local Commissioner

(1)   

A Local Commissioner may—

(a)   

publish all or part of a statement under section 34H,

5

(b)   

arrange for further publication of all or part of an adverse

findings notice published under section 34I(3) or (6), or

(c)   

publish a summary of a matter which is the subject of a

statement or adverse findings notice under section 34H or

34I,

10

   

if, after taking into account the public interest as well as the interests

of the complainant (if any) and of other persons, the Local

Commissioner considers it appropriate to do so.

(2)   

A Local Commissioner may—

(a)   

supply a copy of all or part of a statement, adverse findings

15

notice or summary mentioned in subsection (1) to any person

who requests it, and

(b)   

charge a reasonable fee for doing so.

(3)   

Subsections (8) and (9) of section 34H apply to any part of a summary

of a matter that is published, or a copy of which is supplied, under

20

this section as they apply to a statement prepared under that section.

34K     

Disclosure of information

(1)   

Information obtained by a Local Commissioner, or any person

discharging or assisting in the discharge of a function of a Local

Commissioner, in the course of or for the purposes of an

25

investigation under this Part must not be disclosed except—

(a)   

for the purposes of the investigation and of any statement,

adverse findings notice or summary under section 34H, 34I

or 34J,

(b)   

for the purposes of an investigation under Part 3 and of any

30

report, statement or summary under section 30, 31 or 31B in

relation to such an investigation,

(c)   

for the purposes of a complaint which is being investigated

by the Parliamentary Commissioner or the Health Service

Commissioner (or both),

35

(d)   

for the purposes of any proceedings for an offence under the

Official Secrets Acts 1911 to 1989 alleged to have been

committed in respect of information obtained, by virtue of

this Part, by a Local Commissioner or by a person

discharging or assisting in the discharge of a function of a

40

Local Commissioner,

(e)   

for the purposes of any proceedings for an offence of perjury

alleged to have been committed in the course of an

investigation under this Part,

(f)   

for the purposes of an inquiry with a view to the taking of

45

proceedings of a kind mentioned in paragraph (d) or (e), or

(g)   

for the purposes of proceedings under section 34G(10).

 
 

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

61

 

(2)   

A Local Commissioner or a person discharging or assisting in the

discharge of a function of a Local Commissioner may not be called

upon to give evidence in any proceedings (other than proceedings

within paragraphs (d), (e) or (g) of subsection (1)) of matters coming

to his or her knowledge in the course of an investigation under this

5

Part.

(3)   

A Local Commissioner must not prepare a statement under section

34H which includes government information unless the Local

Commissioner has—

(a)   

obtained the written consent of an officer of the government

10

department concerned, or

(b)   

given the department not less than one month’s notice in

writing of the intention to include the information in a

statement.

(4)   

In subsection (3) “government information” means information

15

disclosed under section 34G(1) which—

(a)   

is derived from a communication with a government

department, and

(b)   

has not been made public.

(5)   

Information obtained from the Information Commissioner by virtue

20

of section 76 of the Freedom of Information Act 2000 is to be treated

for the purposes of subsection (1) as obtained for the purposes of an

investigation under this Part and, in relation to such information, the

reference in paragraph (a) of that subsection to the investigation has

effect as a reference to any investigation.

25

34L     

Law of defamation

(1)   

For the purposes of the law of defamation the following are

absolutely privileged—

(a)   

the publication of any matter in communications between an

adult social care provider and a Local Commissioner, or any

30

person discharging or assisting in the discharge of a function

of a Local Commissioner, for the purposes of this Part;

(b)   

the publication of any matter by a Local Commissioner or by

any person discharging or assisting in the discharge of a

function of a Local Commissioner, in communicating for the

35

purposes of this Part with a person mentioned in

subsection (2);

(c)   

the publication of any matter in preparing, making and

sending a statement in accordance with section 34H;

(d)   

the publication of any matter by inclusion in an adverse

40

findings notice published in accordance with section 34I(3),

(4) and (5) or (6);

(e)   

the publication of any matter by inclusion in a statement,

adverse findings notice or summary published or supplied

under section 34J;

45

(f)   

the publication of any matter contained in a report by a Local

Commissioner which has been made available to the public,

being publication by inclusion in a report made or published

under section 34S.

 
 

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

62

 

(2)   

The persons mentioned in subsection (1)(b) are—

(a)   

a complainant or the person affected in relation to a matter;

(b)   

the Parliamentary Commissioner, the Health Service

Commissioner or any officer of either such Commissioner;

(c)   

the Care Quality Commission or any officer of that

5

Commission;

(d)   

a local authority.

Arrangements with other Commissioners etc.

34M     

Consultation with other Commissioners

(1)   

Subsection (2) applies if, at any stage in the course of an investigation

10

under this Part, a Local Commissioner forms the opinion that the

matters which are the subject of the investigation include a matter

which could be the subject of an investigation by—

(a)   

the Parliamentary Commissioner, in accordance with the

PCA 1967;

15

(b)   

the Health Service Commissioner, in accordance with the

HSCA 1993;

(c)   

the Scottish Public Services Ombudsman in accordance with

the SPSOA 2002; or

(d)   

the Public Services Ombudsman for Wales, in accordance

20

with the PSOWA 2005.

(2)   

The Local Commissioner—

(a)   

must consult with the appropriate Commissioner or

Ombdusman about the matter, and

(b)   

where a complaint was made about the matter must, if the

25

Local Commissioner considers it necessary, inform the

person initiating the complaint under this Part of the steps

necessary to initiate a complaint under the PCA 1967, the

HSCA 1993, the SPSOA 2002 or the PSOWA 2005, as the case

may be.

30

(3)   

Consultation under subsection (2)(a) in relation to a matter under

investigation under this Part may be about anything relating to the

matter, including—

(a)   

the conduct of any investigation into the matter, and

(b)   

the form, content and publication of any report or statement

35

of the results of or conclusions on such an investigation.

(4)   

Subsection (5) applies if, at any stage in the course of conducting an

investigation under the PCA 1967, the Parliamentary Commissioner

forms the opinion that the complaint relates partly to a matter which

could be the subject of an investigation under this Part.

40

(5)   

The Parliamentary Commissioner—

(a)   

must consult with the appropriate Local Commissioner

about the complaint, and

(b)   

if the Parliamentary Commissioner considers it necessary,

must inform the person initiating the complaint of the steps

45

necessary to initiate a complaint under this Part.

 
 

 
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