Mr.
Stephen O'Brien: As long as the Minister is not trying to
put a time on that, we can all have our own thoughts as to how long
that may be. As he referred to Martin Luther King, we can all have our
dreams.
Mr.
Mike O'Brien: In your
dreams.
Mr.
Stephen O'Brien: The Minister has sought to satisfy us why
this measure has been limited to adult social care. There is a genuine
anxiety that, for whatever reasons and whatever the merits and
demerits, children’s social care and adult social care are
effectively dealt with by two different arms of Government. As with all
such issues, there is both a desire and an anxiety on the part of the
Government and those who scrutinise it, that this above all is an area
that should be joined up. An absence of joined-up thinking in relation
to children is always of grave concern, particularly when so many
social services are produced from the same source within the local
authorities with whom we as hon. Members have to deal. That is
notwithstanding the fact that this has been put under the banner of
children’s services and that the onset shortly of
children’s trusts will be key. Although I cannot see an
immediate solution to breaking down that barrier in the way that
legislation is approached because of departmental responsibilities,
there is a need to recognise that the issue of complaints, particularly
with regard to children, is effectively the same as in the courts.
There one has an advocate appointed by the court or some kind of friend
to enable an approach to be made. I hope the Government will give that
active consideration.
Having
listened to the Minister I will not press these amendments to a vote,
but it is important to recognise the issue. In seeking to introduce
this series of linked amendments it took me a long time to find
amendment 62 in the documentation as it is right at the back
and had just been linked with this subject. It merited discussion and I
hope some more thinking will take place. I beg to ask leave to withdraw
the
amendment. Amendment,
by leave, withdrawn.
Clause 33
accordingly ordered to stand part of the
Bill.
Schedule
5Investigation
of complaints about privately arranged or funded adult social
care
Mr.
Stephen O'Brien: I beg to move amendment 104, in
schedule 5, page 53, leave out lines 25 to
35. Unlike
in the previous clause, the amendments to this one are sequential
rather than grouped. We had some discussion on that but, given that we
are not under so much pressure, it will be easier to take them
separately as I have prepared
them. On
amendment 104, the Bill as drafted suggests that an action is to be
treated as an action taken by the legal person of the provider. In
other words, in terms of liability, an action is to be treated as an
action taken by the provider if it is taken either
by a person employed
by the provider, a person acting on behalf of the
provider, or a person to whom the provider has delegated functions.
Those are quite common legal concepts. The provisions suggest that the
conduct of individuals will not be considered or commented upon, which
seems odd, both in itself and if and when we move to a fully registered
work force. We need to be
clear that one of the potential key benefits of the process is that it
is able to ensure that lessons can be learned from its findings on
complaints. We are dealing with potentially extremely sensitive and
vulnerable situations, and it behoves all of us to ensure that lessons
are quickly learned. One of the most shocking recent absences in
relation to adult social care is what has taken place at Stafford
hospital, and the Mid Staffordshire NHS Foundation Trust was prayed in
aid by some of the earlier amendments tabled by my hon. Friend the
Member for Hemel Hempstead. It is absolutely vital that we keep in mind
how quickly we need to ensure that lessons are
learned. I
also need to know, if I may press the Minister, what happens if a
provider goes bust but the management team continue trading under
another name. I assume that the body remains accountable, but there
must be a question mark on the concept of being able to pierce the
corporate veil. As a lawyer, I will not go into the detail of that,
because I dare say that other members of the Committee are familiar
with the concept at a legal level. While that is not a completely happy
analogy, it helps promote my point, and I would like the Minister to
comment on how far one can get behind the legal person of the
incorporated or unincorporated body actually to get to some of the
individuals
involved. The
amendment raises the important principle of liability, and I hope that
the Minister will clarify the schedule as drafted. I do not for a
moment suggest that the amendment is particularly elegant or happy, but
it has given me the opportunity to raise a point, and I hope that the
Minister will offer some analysis and comfort on the
issue.
Mr.
Mike O'Brien: New section 34A includes the definitions of
adult social care and adult social care provider for the purposes of
the new scheme set out in new section 34B. The meaning of adult social
care is the same as that in section 9 of the 2008 Act. The amendment
would remove subsections (4) and (5) of new section 34A,
which provides that action taken on behalf of the provider should be
treated as action taken by that provider. Not referring to the
ombudsman being able to investigate action taken on a provider’s
behalf would introduce uncertainty about the coverage of the scheme,
and I am glad to have the opportunity to set out why that would not be
desirable. Our
aim is to ensure that complaints about social care that is provided
under any arrangements where the provider has delegated a service
remain within the ombudsman’s remit. We want the ombudsman to
have a fair degree of discretion. The provisions cover action taken by
an employee, by a person with whom the service provider was contracted
to provide the service, as well as where the service is provided by a
less formal arrangement with another person. I do not believe that
anyone would think it right for a service provider to evade
investigation of poor practice just because someone acting on their
behalf carried out the service for them and was directly responsible
for the actions.
Suppose
a care home provider contracts with a person for that person to come
into the home and provide a particular service, which is then the
subject of a complaint. Under these provisions, the care home provider
is still responsible for what happens within that care home and they
should rightly be subject to an investigation if there is a complaint
to the ombudsman. Without these provisions, it would be easy for such a
provider to escape investigation by arguing that the service that had
been the subject of the complaint was carried out by someone else on
their behalf. That would be wrong and therefore I trust that the hon.
Gentleman will feel able to withdraw the
amendment. The
hon. Gentleman rightly raised the issue of those who trade under
different names and he asked to what extent we can pierce that
corporate veil. It is our intention that the ombudsman would be able to
examine all the circumstances in a case and would have broad discretion
in the way that that would be done. It would be the facts that would be
investigated rather than a corporate individual. If the ownership of a
particular care home was to change and was passed among a number of
organisations, each of which was a separate corporate entity but owned
by linked individuals, the ombudsman would still be able to look at the
facts and the circumstances before taking a view on the
matter.
Mr.
Stephen O'Brien: I am most grateful to the Minister,
because this is obviously an important point and I think that he
recognises that it is important in terms of the way that accountability
flows.
I have had a
case in my constituency that caused the most monumental nightmare for
everyone concerned. After an inspection, the lady who originally owned
the care home in question was found to have been operating something
that was very sub-standard and indeed she faced some allegations that
she had provided very poor care. Of course, her permission to operate
was withdrawn under the various processes that applied.
It then
turned out that that sanction had been wholly and wrongly misapplied to
her, because the inspectors had placed an over-reliance upon
information from the owner-boss of the care home; I will not name the
case, for obvious reasons. During the inspection process, the company
had been sold, it had become part of a larger group and there was a
conflict of personalities between these two individuals. Consequently,
there was an attempt by the new owner effectively to get rid of the
former owner, so that the new owner could make efficiency savings; the
removal of the former owner was certainly not going to do anything to
improve patient care. It was an absolutely despicable case at every
step. However, the difficulty was being able to get behind the issues
of
ownership. As
I say, I am grateful to the Minister for his clarification. I am sorry
that this is a long intervention, but I am grateful to him because, as
he said, the process is about investigating the facts. However, it can
often happen in these cases, after the inspection and regulatory
process, that matters reach the courts. The case that I mentioned
reached the courts purely because there was a restraint of trade case
that took place in the courts, because of the attempt by the new owner
of that care home to restrain the original owner from going into
competition with them after she realised that her future plans were
being blocked. That was why we had huge difficulty in getting behind
the different corporate entities.
I
am glad that the Minister was able to take my point seriously, but this
is a real issue; we are trying to ensure that patients do not
suffer.
Mr.
Mike O'Brien: In trying to get to the facts in a case,
there is obviously a requirement to get the relevant information. Where
an ombudsman is concerned, it is always difficult for them to collate
and obtain the information that they need. Some people may say that
they just will not co-operate with the ombudsman and that remains an
issue for us. I just want to warn the hon. Gentleman about that,
because these provisions are not panaceas. They are ways of helping,
instruments that are available to those who are badly done by, and we
need to ensure that they are in place where they are needed. However,
let us not pretend that they will solve all the problems or that they
will be able to do more than they
can. There
is also the point about an individual’s liability versus the
liability of a home or a company. Let me say that an ombudsman can
report, but whether compensation is paid or what the final outcome of a
case will be is all a matter of law and there is also the question of
whether there will be co-operation with the ombudsman.
These are
complex issues and I just wanted to put on record the fact that there
are a number of caveats, so that it is clear that I am not claiming
that these provisions will provide all the guarantees that we might
like to provide. They will provide a tool to ensure that complaints can
be dealt with more effectively and to ensure that people have somewhere
to go and some prospect of getting a
remedy.
Mr.
Stephen O'Brien: I am grateful and the Minister is right;
it is obviously a complex area. He is also right to be cautious
because, while, as we have already stated, we more than welcome the
proposal, there will always be some who seek to escape the full
consequences of the law and everything that runs up to that. On the
back of the discussion, which moved matters forward sufficiently, I beg
to ask leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
6.45
pm
Mr.
Stephen O'Brien: I beg to move amendment 64, in
schedule 5, page 54, line 4, leave
out ‘not’ and insert ‘choose not
to’. Quite
simply, and this may display my ignorance, can the Minister explain
what proposed new schedule 5A to the Local Government Act 1974 covers
and why the ombudsman is not given discretion over
investigations?
Mr.
Mike O'Brien: New schedule 5A excludes from the
ombudsman’s remit the commencement or conduct of civil or
criminal proceedings before any court of law. That mirrors the
arrangements in the local authority scheme and also those for all other
public service ombudsmen. For example, a complainant could not complain
to the ombudsman about how the High Court dealt with a claim against a
care home. That would not be appropriate for the ombudsman to
investigate.
Mr.
Stephen O'Brien: That is fine. I beg to ask leave to
withdraw the amendment.
Amendment,
by leave, withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 65, in
schedule 5, page 54, line 37, leave
out ‘an order in Council’ and insert
‘regulations’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 66, in schedule 5, page 54, line 39, leave out
from beginning of line to ‘made’ and insert ‘A
regulation’. Amendment
144, in
schedule 5, page 54, line 40, leave
out from ‘(10)’ to end of line 41 and insert
‘may not be made unless a draft of
the Instrument has been laid before and approved by a resolution of
each House of Parliament.’.
Mr.
O'Brien: I am happy to say that I will withdraw the
amendment but before I do so I need to say something about it. I would
like clarity from the Minister about Privy Council responsibility and
using Orders in Council rather than regulations. I move the amendment
to get an answer.
Mr.
Mike O'Brien: At present the Bill provides for changes to
be made by an Order in Council. An Order in Council is a form of
statutory instrument and, as such, may be annulled in pursuance of a
resolution of either House. That is what the Bill specifies. Orders in
Council are made by Privy Councillors and have often been used to amend
primary legislation governing public service ombudsmen. The use of
regulations, on the other hand, is a power given to a Secretary of
State, so is linked to a particular Department. Matters relating to the
ombudsmen are not strictly departmental matters, which is why Orders in
Council are used to make changes relating to ombudsmen in legislation.
The new scheme will sit alongside the existing local authority scheme
in the 1974 Act, under which there is already provision for the
equivalent schedule of exclusions to be amended by Order in Council. If
the power under proposed new section 34B is ever used, it is highly
likely that it will be at the same time as the existing power. It would
be cumbersome to have to have two different statutory
instruments—one by Order in Council and one by regulation. I
trust that the hon. Gentleman is satisfied that that is a reasonable
way to proceed.
Mr.
Stephen O'Brien: I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 67, in
schedule 5, page 55, leave out line 6 and
insert— ‘(a) a person who
has power of attorney for
D’. As
drafted, a complaint can be
made “(a)
by D’s personal representatives (if any), or (b) by
a person who appears to a Local Commissioner to be suitable to
represent
D.” I
am sorry to use the wording in the Bill but it is probably the easiest
way to ensure that the Minister understands what I am trying to say.
The amendment substitutes “D’s personal
representatives”—D being the person in care—with
the more tightly defined power of attorney holder. We want to probe the
Minister on what those phrases mean,
particularly, “(a)
by D’s personal representatives (if any)”
and
tease out how loosely “D’s personal
representatives” is to be understood. Does it mean anyone
speaking on behalf of D, or is it limited to a particular category of
people because of the proof of a certain degree of connection or
authority?
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