Mr.
Mike O'Brien: The Bill allows persons to complain on
someone else’s behalf. If someone has died, or is otherwise
unable to authorise someone else to complain on their behalf, a
personal representative, or someone who appears to be suitable to the
ombudsman, may complain. It gives a certain amount of discretion to the
ombudsman. If someone has died, the estate or personal representatives
in law will be in that category. The amendment would remove the right
of personal representatives of a deceased person to complain, and
instead, create the right for someone who has the power of attorney to
do so.
The Bill
allows someone authorised in writing by the person affected to make the
complaint on their behalf. This could include a person with the power
of attorney, so the power of attorney could, in any event, do that. But
that is not enough for two reasons. First, since many service users are
elderly and frail, it is a sad reality that they could have died before
the complaint can be pursued. Secondly, they may be unable to authorise
someone to act on their behalf. If the person affected has died, there
may be a personal representative who will need to take that forward for
the broader public good and to ensure that they are satisfied about how
things were done in a particular circumstance. It is appropriate that
they should have the ability to do
so.
Mr.
Stephen O'Brien: I am satisfied with the Minister’s
answer. The difficulty arises, as both he and I and indeed all members
of the Committee will recognise, because our political generation faces
the enormous demography of an ageing population. Yet, outside this
particular arena, where we are effectively setting up a complaints
process, there is also the process of people being represented at the
onset of dementia and Alzheimer’s. There is always a tricky
phase between the point at which we do not want someone’s
independence, dignity and inner confidence impugned and when it is
becoming too difficult for people to handle their own affairs. At that
difficult time, it is possible that the personal
representative’s approach in the complaints process will have a
read-across to something that is not as formal as the power of
attorney, or an enduring power of attorney, which now seems to be one
of the areas that is causing quite a lot of problems. Does it take
place before someone becomes a candidate to go into a residential care
home, or does it happen after they have made their own decision to go
into the care home? All sorts of issues surround this area, so I urge
the Minister to comment on the potential of taking that example and
looking at it a bit more widely. That would give us a bedrock on which
to address some of the wider issues about the ageing
population.
Mr.
Mike O'Brien: The aim here is to give the ombudsman at
least a broad degree of discretion about whom he accepts a complaint
from. It is right that when we are looking at such issues, we are
conscious that it has a broader and general applicability. We are
dealing with the ombudsman, and therefore, in a sense, we are taking
the issues outside the legal, formal arena. In that
arena, the courts will have a view about who is
appropriate to make a complaint and what the circumstances are in which
an organisation or individual is obliged to respond. That would be a
matter of law. Here, again, it is a matter of law, but we want to give
greater flexibility to the ombudsman to take a view about what sort of
complaint it will be prepared to consider and from
whom. I
accept that there is a wider general applicability to the issues. I am
a bit more cautious than the hon. Gentleman wants me to be about how we
go down the route, because I am conscious that we will have both legal
and non-legal—in a sense, outside the formal, legal
processes—obligations that we have to take account of. I do not
want to make general statements about the capacity of individuals to
make complaints on behalf of others, if the courts take a view that
under its procedures, it would be not permissible for it to go much
further than to the ombudsman with that sort of
complaint.
Mr.
Stephen O'Brien: I am grateful. I hope that that was a
useful exchange. I am satisfied on the actual substance of the
amendment that it can be withdrawn. Effectively, the power of attorney
point is included, rather than excluded. The general point that I made,
using the issue as a hook to make it, is a discussion for another day.
But there are some important issues that need to be established. As we
are looking at contentious processes—this is the ombudsman
effectively being brought into a process—it is part of a more
appropriate way of dealing with complaints, particularly where the
courts are involved. That is often a more contentious and difficult
process, and often a barrier to access; an ombudsman is not, because of
its availability and access to all. There is clearly an area in which
such thinking may be a spur to thinking that needs to go on elsewhere.
Hopefully, the courts will take good cognisance of it as we develop the
process. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 68, in
schedule 5, page 55, line 14, leave
out ‘12’ and insert
‘36’. The
ombudsman can take complaints only within 12 months of the
event, although he has the power to suspend that. The simple question
is: why 12 months, especially as the whole arena of complaints
procedure was first promised—certainly more than
mooted—in 2007? We felt that in fairness the time should stretch
back to then and that is why we have substituted 36 months,
which is around the average length of stay in a care home and might
make some correlating sense. Furthermore, if the ombudsman can take
complaints from events 12 months in the past, what assessment has the
Minister made of the initial wave of complaints, which may meet the
arrival of the framework? Paragraph 32 of the RIA states
that the Government envisage up to 1,000 people a year having their
complaint looked at. Where does the Minister get that figure from and
is he concerned that up to 1,000 people will put in complaints on the
first day, in addition to the 1,000 over the first
year? To
some degree we have the example of what has just taken place in
relation to the parliamentary ombudsman, with whom I had a meeting
recently. A number of complaints already in train in the Healthcare
Commission
have now been taken on by the ombudsman, because the Care Quality
Commission has taken over the Healthcare Commission’s role and
the complaints process is with the parliamentary ombudsman. We have now
reached the point at which the ombudsman’s own work load is
arriving, as well as what has effectively been taken on from the
previous Healthcare Commission work load. The Healthcare Commission was
a public body, so had there been any allegation of maladministration or
other such things in the broader remit of what the ombudsman can
consider, there would of course have been some referrals from the
Healthcare Commission to the ombudsman. There were three categories.
That assessment needs to be made and clearly understood, as does the
sourcing of the estimation in the regulatory impact assessment given by
the
Minister. On
the amendment, the RIA addresses set-up costs for the ombudsman in
2009-10, at paragraph 15, noting that they are in the region of
£500,000 to £770,000. I would be grateful if the Minister
could let us know whether the process has begun and when he expects the
ombudsman to
start.
Mr.
Mike O'Brien: There are a number of reasons why we have
specified a time limit of 12 months. Before going into those, the hon.
Gentleman is right that there needs to be a balance. I am sure that
some people might have complaints from further back than that that they
might well want dealt with, but we have to look at some basis upon
which we judge how far back to
go. The
measure mirrors the provisions in part 3 of the Local Government Act
1974, governing the ombudsman’s role in relation to local
authorities. Twelve months is a reasonable time and the vast majority
of complaints would reach the ombudsman well within that period. If we
were to have a longer limit—for example, the three-year period
proposed by the hon. Gentleman—some investigations could
potentially be made more difficult, because key staff had moved on, or
managers in the service might have moved to another job, and those that
remained would find it difficult to recall accurately events going back
three years in the
past. It
is not impossible to do that—the courts do, the tax authorities
do—and all sorts of provisions require longer periods, but we
wanted to ensure that the ombudsman, who has a difficulty enough job in
any event, is not burdened with all the problems of calling evidence,
which would normally be done. Such issues are usually resolved in a
hearing, but the ombudsman would normally want do this on paper.
Therefore, it is necessary to have a situation in which a reasonable
period of time is looked at. I would not suggest that there might not
be cases in which it is right to allow more than 12 months. For that
reason we have provided in subsection (3) for the ombudsman to have the
power to disapply those time limits. However, we would very much see
that as a decision for the
ombudsman. The
ombudsman’s remit would not extend to self-funded adult
social-care users until 1 October 2010, when the new CQC registration
starts applying to adult social care. I am happy to write with more
details on the impact assessment’s assumption about the 1,000
people; we shall go back, check the detail and report on the sources of
that assumption. Our proposals in the Bill include the local government
funding and money set aside to cover the establishment of a
scheme.
Mr.
Stephen O'Brien: I am most grateful. That was helpful and
I shall look forward to the letter covering the other point. I beg to
ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Ordered,
That further consideration be now adjourned. —(Mary
Creagh.) 7.2
pm Adjourned
till Thursday 25 June at half-past Nine
o’clock.
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