Mr.
Mike O'Brien: Our aim with the new scheme is, as far as
possible, to be consistent with the existing provisions in the 1974
Act, which govern the ombudsman’s handling of local authority
complaints. In those provisions the ombudsman’s recommendations
can apply only to the local authority. In the new scheme they can apply
only to the adult social care provider. The ombudsman’s
recommendations are intended to be a response based on conclusions
reached in the investigation of a complaint about the adult social care
provider. Such complaints are not complaints about the local authority.
Indeed, if they were, they would fall to be dealt with by the existing
scheme under part 3 of the 1974 Act. The ombudsman is not dealing with
complaints about the Care Quality Commission, the Secretary
of State or the Department of Health. That is why we have provided
under the Bill for the ombudsman’s recommendations to apply only
to the provider. That does not mean that if the ombudsman takes a view
that there are concerns that ought properly to be drawn to the
attention of others, that cannot be done, particularly when it comes to
the Care Quality Commission, local authorities or central
Government. The
Bill enables the ombudsman’s statements to be sent to a local
authority or to the CQC. Both already have a strong interest in acting
on matters that are brought to their attention in that way. It would
merely add to the ombudsman’s administrative responsibilities
to require formal recommendation to be made to them and to be responded
to in a formal
way. The
CQC and local authorities have a direct interest in individual cases,
but the Secretary of State also has an interest in the wider picture.
He needs to reach a strategic view about services and he is assisted in
that process by the provision under proposed new section 34R, which
requires the ombudsman to conduct a periodic review of the scheme and
to convey to Departments and the CQC any recommendations or conclusions
that he has reached about how it operates. In the circumstances, we can
leave it to the ombudsman to determine whether he needs to go further
in relation to such
matters. I
do not wish to go into the distressing issues in respect of Mid
Staffordshire that the hon. Member for Eddisbury raised. They are of
substantial concern and there have been, as he knows, two important
investigations into the matter. We need to look at how in the future
the ombudsman will deal with individual issues that are drawn to his or
her attention. In the case of Mid Staffordshire, there were issues in
relation to the staff not bringing the matters out early enough. We
want it to be possible for that to happen, but we must also recognise
that, if the ombudsman is to investigate anything, he needs to have
something drawn to his attention. It is only then that the ombudsman
will become
involved. In
a sense, the ombudsman does not deal with the concerns that he
expressed about Mid Staffordshire, but when a complaint has indeed been
made, he then needs to determine how he will deal with it and ensure
that other appropriate organisations respond to their duties. We want
to follow the existing provisions under the 1974 Act, whereby the
ombudsman can, if he feels it appropriate, draw to the attention of the
Government any concerns that he might have in relation to the powers,
so that they can consider whether any appropriate action is necessary.
On that basis, I hope that the amendment will be
withdrawn.
Mr.
Stephen O'Brien: That is a satisfactory answer. I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 75, in
schedule 5, page 58, line 24, at
end insert ‘and (c) the Member of
Parliament in whose constituency any person concerned under section
34H(6) lives or
works.’. Currently,
the ombudsman would have to send a copy of the statement of
recommendations for the provider to the CQC and the local authority.
Obviously, that is not the same as making recommendations about them.
Amendment 75 would see that a copy was sent to relevant local MPs, too.
As we all know from our case loads, such complaints are naturally
within the purview and sometimes the preserve of MPs, and it seems
sensible that local and relevant MPs should be kept in the loop. I hope
that the Minister considers the amendment to be
helpful.
Mr.
Mike O'Brien: The complainant might not wish his MP to see
the complaint if it is a matter of privacy. Under the current scheme,
the ombudsman can supply copies of statements and another information
to Members of Parliament on request. That seems the right approach.
I believe that it works perfectly well, and we need to be cautious about
interfering with a process that seems to work reasonably well. Hon.
Members can obtain information on cases. They are aware of that, for
example, when they have correspondence on the matter with constituents.
However, intruding an MP into what may be a personally felt case, where
a report is shared between people on a confidential basis, may not be
what the individual wants. I hope that the hon. Gentleman will withdraw
his
amendment.
Sandra
Gidley: I am curious about the argument. Listening
carefully, I think the Minister makes an interesting point. Sadly, it
is also the case that some constituents will only go to an MP of one
party. I have had such an experience. I inherited some work from my
late predecessor, Michael Colvin, and people did not want to talk to me
about it. By contrast, there would have been people who would not have
gone to him for his political views either. It is a sad reflection that
people think that we are politicised when we are in Parliament, but
nevertheless, that is the way some constituents seem to prefer to
behave.
Mr.
Mike O'Brien: The hon. Lady makes a valid point. It
reinforces my argument that the amendment is not
appropriate.
Mr.
Stephen O'Brien: I take the point about privacy
seriously—it is an important point made by the Minister.
Equally, I think that the point that the hon. Member for Romsey made,
regarding the perception that once elected, we serve all our
constituents, irrespective of whether people voted for our
party—or if it turns out that they did not vote at all—is
also important; we should recognise that there is the other side. I
accept the Minister’s response, and I beg to ask leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 76, in
schedule 5, page 58, line 31, at
end insert— ‘(8A) In the
case of section 34H(8)(b) applying, the Local Commissioner must submit
his reasons, in writing, to the Secretary of
State.’. The
amendment seeks some accountability for the ombudsman when he decides
not to identify individuals. I just hope that the Minister is able to
expand a little on the previous answer and give us some examples as to
when he envisages that privacy should occur. To some degree, he has
already answered it, so maybe there will only be a brief
response.
Mr.
Mike O'Brien: The ombudsman would normally want to name
the provider in a statement because it is in the public
interest—there will be a public statement on the
ombudsman’s conclusion on a complaint. The provision in the Bill
is therefore worded to allow the statement to identify the provider
wherever possible. But it also recognises that there may be human
rights issues in doing so, such as when there are risks to the privacy
of the individual provider. There are providers who may be close to an
individual, and others may have a long-term relationship with the
individual. On
the other hand, there are more likely to be circumstances where the
ombudsman will want to ensure that an individual service user cannot be
identified as a result of naming the provider in the statement. In a
small care home with only 100 or so residents, the
identification of the provider may allow others to work out who the
individuals affected in the case are. Of course, the complainant may
actively wish the provider to be named and not be concerned about being
identified. We
do not envisage that the discretion available to the ombudsman will
mean that he will decide in every case that it is appropriate for a
provider or another person to be identified as a result. The point of
the provision is that the ombudsman can decide on the basis of the
merits of a particular case. We give him that discretion because it
would be difficult to make provision for all the precise circumstances
where identification is or is not appropriate. Leaving it to the
ombudsman in those cases is the best way
forward.
Mr.
Stephen O'Brien: I accept the Minister’s response,
and I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 77, in
schedule 5, page 59, line 46, leave
out ‘month’ and insert
‘week’.
The
Chairman: With this it will be convenient to discuss
amendment 78, in
schedule 5, page 61, line 12, leave
out ‘month’s’ and insert
‘week’s’.
Mr.
O'Brien: The two amendments are probing in nature. They
try to ascertain why the particular time frames have been chosen in the
two cases concerned. In the schedule, the provider will be given a
month to notify the ombudsman of the action it plans to take in
response to his recommendations. Amendment 77 would reduce that to a
week—a month can seem a rather long time in the tough
circumstances, particularly of serious complaints. I hope it will give
the Minister the opportunity to explain the thinking behind the time
frames. It is also important to note that that is the time for a
response, not time for action to be taken. I hope that the Minister
will recognise that there may be a difference between the
two.
Amendment 78
relates to the period of warning the Government get that the ombudsman
is about to release previously unpublished Government information. As
currently drafted, the ombudsman can publish after a month, or sooner
with written consent; so the question arises as to why the Department
needs a month’s notice. I would have thought that a week would
be sufficient, particularly given the move to transparency. I hope that
the Minister takes the amendments in the constructive spirit in which
they are
intended. 10.15
am
Mr.
Mike O'Brien: Three months is allowed for a local council
under part 3 of the 1974 Act. I do not believe that that long is needed
for a social care provider, which typically will have fewer processes
to go through than a local authority. More importantly, processes of
fairness require that the provider have adequate time but not too much
time. It is about getting the balance right.
The provider
should not be placed under undue time pressure to respond. He will
often need to consult staff, check records and take other action that
it would be impossible to do effectively within, say, a week. Normally
the provider would need to decide what action to take to improve the
service and remedy any inconvenience, suffering or financial injustice
that a complainant has experienced. To ensure that the
ombudsman’s recommendations are met, the provider cannot
reasonably be expected to consider such matters in a
week. I
appreciate that this is only a probing amendment. It is certainly not
in the interests of the scheme as a whole if providers cannot respond
properly to recommendations. I hope that explains why we have reduced
the time from three months to one month, and why we felt that reducing
it further would not be
appropriate. As
for the period that the ombudsman must give a Government Department if
he proposes to use Government information, this is in essence about
disclosure of information. The relationship between a Government
Department and the ombudsman is important. The ombudsman may wish to
cite Government information in order to offer complete responses to
complainants, and the provision is worded to enable that to
happen. I
believe that a month is reasonable to allow the Department time to
consult internally and to give adequate consideration to the
implications of the information’s publication. A shorter period
could have a detrimental impact on the quality of response. We want to
ensure that the information that the Government are providing can be
collated, examined and checked for accuracy. If the data are available
in a non-collated form, they need to be collated, brought together,
checked for accuracy, peer reviewed and examined. Trying to squeeze
that into a month could be
difficult. Moreover,
we also want to ensure that if information is provided, it is directly
relevant. Checking the detailed local relevance may be important in
some cases. I hope that we have got the balance right. It was with a
view to doing so that the provisions were put in
place.
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 79, in schedule
5, page 62, line 21, at end insert
‘or (e) the Care Quality
Commission’. The
Bill makes provision for the local government commissioner to consult
with the Parliamentary Commissioner or Health Service Commissioner, or
his equivalents in Wales and Scotland. Our amendment seeks to add the
Care Quality Commission to the list. As it is the registration,
inspection and regulatory body, surely such consultation should be
enabled.
Mr.
Mike O'Brien: The relationship between the ombudsman and
the CQC is important. The Bill allows the ombudsman to send copies of
his statements to the CQC and also to send any information at any date
if it appears relevant to the CQC’s functions. Findings by the
ombudsman are often indicators of poor service and performance, which
impacts on the suitability of a provider to be registered, and the CQC
can then take action to deregister a provider.
The CQC will
need to take account of concerns, complaints and allegations when
determining whether services are being safely provided and are of
appropriate quality. Such intelligence will feed into the risk
assessments that the commission will make when determining the level of
scrutiny that it should apply to a particular provider. The commission
will also have the freedom to investigate a case if it has concerns
that the health, safety or welfare of patients or service users is or
may be at
risk. We
look to the CQC and the ombudsman to agree arrangements between
themselves as to how best complaints data can be fed from the ombudsman
into the CQC’s registration assurance systems. Those operational
details are, of course, best left to the organisations to work out. I
believe that there is sufficient provision in the Bill to ensure the
appropriate level of interaction and collaboration between the two
bodies. They will have obligations put on them. Let us allow them to
work out the best ways of putting detailed implementation in
place.
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