Draft Contracting Out (Local Authorities Social Services Functions) (England) Order 2011
The Committee consisted of the following Members:
† Abbott, Ms Diane (Hackney North and Stoke Newington) (Lab)
† Bacon, Mr Richard (South Norfolk) (Con)
† Blackman, Bob (Harrow East) (Con)
† Burstow, Paul (Minister of State, Department of Health)
† Crabb, Stephen (Preseli Pembrokeshire) (Con)
† Doran, Mr Frank (Aberdeen North) (Lab)
† Dowd, Jim (Lewisham West and Penge) (Lab)
† Ellis, Michael (Northampton North) (Con)
† Goggins, Paul (Wythenshawe and Sale East) (Lab)
† Hamilton, Fabian (Leeds North East) (Lab)
† Leadsom, Andrea (South Northamptonshire) (Con)
† Percy, Andrew (Brigg and Goole) (Con)
Qureshi, Yasmin (Bolton South East) (Lab)
† Simpson, David (Upper Bann) (DUP)
† Soubry, Anna (Broxtowe) (Con)
† Wright, David (Telford) (Lab)
Mark Oxborough, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Wednesday 15 June 2011
[Mr Peter Bone in the Chair]
Draft Contracting Out (Local Authorities Social Services Functions) (England) Order 2011
2.30 pm
The Minister of State, Department of Health (Paul Burstow): I beg to move,
That the Committee has considered the draft Contracting Out (Local Authorities Social Services Functions) (England) Order 2011.
It is a pleasure to serve under your chairmanship today, Mr Bone. I shall spend a little time describing the purpose of the order and, obviously, will respond to the Committee’s questions. I do not wish to detain the Committee unduly, but I want to ensure that we are all clear about what the order will do.
The purpose of the order is to allow local authorities taking part in two pilot programmes to contract certain adult social services conferred on them by a variety of legal provisions to outside organisations. The pilots are, first, adult social work practices and, secondly, right to control pilots. In a nutshell, the SWP pilots will test several models of social worker-led organisations undertaking adult social care functions for which local authorities are currently statutorily responsible. The right to control pilots are separately testing out the exercise of disabled people’s right to manage the state support they receive to live their daily lives. I will explain each of the programmes in greater detail as I progress.
The Government’s “Vision for Adult Social Care” sets out an agenda based on a power shift from the state to the citizen by putting people and personalised services and outcomes centre stage. We are committed to the devolution of decision making close to those who are responsible for the service delivered and, wherever possible, into the hands of the service beneficiaries. That is an integral component of our wider personalisation agenda.
We also want to ensure that individuals, carers, families and communities work together with local services to balance family and community action with state support. Since 2008, the education Department has been funding social work practice pilots to deliver services for looked-after children and young people in care. Those pilots have led to the creation of independent, social worker-led organisations, including social workers forming their own employee-owned social enterprises. They have also co-ordinated and monitored services provided to children and young people in the social work practice. They are independent of the local authority, but work closely with it and in partnership with other providers. The local authority pays the social work practice for the services that it provides.
Last November, the Secretary of State announced that the Government wanted to test the programme in the adult social care sector, with pilots starting this summer and running for two years. Instead of focusing on a specific area of care, like the pilots for looked-after
children, we wanted to open up the idea to areas that local authorities felt would benefit from a different approach. As a result of that co-production, we have a rich variety of pilots.Surrey is looking at how it can improve the care of local people who are deaf or hard of hearing. Stoke-on-Trent is working in close partnership with voluntary organisations that deal with adults affected by Parkinson’s disease, motor neurone disease and multiple sclerosis. Suffolk is dealing with adults who are deaf, visually impaired or who have dual sensory loss. Birmingham is looking at a full range of social work tasks for helping people with physical disabilities and long-term conditions. Lambeth is looking at all adults who are funding their own care or whose needs fall below the eligibility threshold. North East Lincolnshire Care Plus Trust is focusing on older people, including those with mental health problems, and adults with physical, sensory or learning difficulties. Finally among the pilots, Shropshire is looking at older people, people with physical difficulties and learning difficulties.
The emerging evidence from the Department for Education pilots strongly suggests that both clients and staff will benefit from service delivery by social work practices. That is why we are offering local authorities the opportunity to test the potential benefits of social work practice as a model and to adopt a completely innovative way and approach to delivering services for adults and their carers.
We want to improve the experiences and outcomes of people in vulnerable circumstances, but we also want to empower social workers to do their job effectively and reduce the unnecessary bureaucracy that so often gets in the way. The programme will bring people who need health and care support closer to those who provide the service they need by reducing that bureaucracy and encouraging innovation and personalised services. It will also give social workers the freedom to run their own organisations how they want, within the constraints of their contract with the local authority. Again, evidence shows that staff working in employee-owned organisations have greater job satisfaction, leading to lower staff turnover and capacity for greater innovation.
Social work practices will discharge the functions of the local authority in providing adult social care under the order. They will be responsible for providing the support to people receiving services from the practice to achieve better experiences and outcomes. They will be responsible for undertaking delegated social work functions, for managing day-to-day support and for co-ordinating and monitoring service provision which, as I explained, will differ between each of the pilot sites because of the nature of the services covered. The local authority will keep strategic and corporate responsibilities and will manage the contract and partnership with the social work practice.
The pilots will give local authorities a unique opportunity to test the potential benefits of various models and to adopt innovative approaches in delivering services for adults and their carers. The Department of Health has worked closely and co-productively with the sector in developing the pilots, which have steering boards with a wide membership—the Department itself, the Department for Culture, Media and Sport and the Department for Education, as well as representatives from the Association of Directors of Adult Social Services, the British Association
of Social Work, the Local Government Association, the National Centre for Independent Living, the College of Social Work and the Social Care Institute for Excellence—also providing project support and advice to the pilot sites. The Department of Health is providing funding of about £1 million in initial support to get the pilots up and running.Pilots are an opportunity to test different models to see what works best. Each participating local authority will be responsible for monitoring the activities of the social work practice and will have the ultimate sanction of terminating a contract with a social work practice that is failing to fulfil the terms of that contract. The local authority will support setting up the social work practice and people’s transition to the practice.
Once in place, the practice will use its income under the contract with the local authority to provide services and to improve the experience and outcomes of people within the practice. The local authority will then manage the contract, monitor performance and manage the relationship as a whole. Periodically, the local authority will review the contract with the social work practice to set new outcome targets and to adjust payments. The Department of Health will expect such reviews to occur at least annually. The local authority will remain liable for the performance of functions undertaken by the practices and will work closely with the local authority, with each authority deciding which decisions it wishes the practice to refer to it under the agreement. Everything therefore will hinge on the specifications of the contracts.
Local authorities need to maintain a close relationship with the practices, but they also need to allow the practice scope to innovate and to make decisions about the best package of support and services for the people involved—service users and carers—and about how to provide them. There is a delicate balance to be struck. The Department would expect local authorities to monitor outcomes, as I said, and to identify issues early, providing support while allowing the practices sufficient autonomy to decide how best to meet the needs of the people they are serving.
The transfer process will be managed between the local authorities and the practice. We will ensure that that is conducted effectively. Each practice will be fully and independently evaluated at the end of the two-year period by the Social Care Workforce Research Unit at King’s college London, which is also involved in the evaluation of the Department for Education social work practice pilots.
Primary legislation specifically allows councils taking part in the Department for Education’s pilot programme to delegate their statutory looked-after children functions. No equivalent legislation allowing the delegation of adult social care functions exists, but the Deregulation and Contracting Out Act 1994 provides for the making of orders allowing such delegation, which is the reason behind the order we are discussing today.
The right to control was introduced by the previous Administration in the Welfare Reform Act 2009. It gives disabled adults greater choice and control over certain state support that they receive to go about their daily lives. The right is based on the principle that disabled people are the experts in their own lives and that they can decide what support they need and how it
should be delivered. It is essentially a variant, relating solely to disabled people, within the general concept of personalisation.The right is being tested in eight trailblazing local authorities in England: Barnsley metropolitan borough council, in partnership with Sheffield city council; Essex county council; Greater Manchester, incorporating the city council and Oldham, Bury, Stockport and Trafford metropolitan borough councils; Leicester city council; the two London boroughs of Barnet and Newham; and Surrey county council—in that area, Epsom and Ewell, and Reigate and Banstead borough councils lead the work. Those trailblazers, funded by the Office for Disability Issues, are looking at the best ways to implement the rights, and will be used to inform decisions about whether and how to roll out the right more widely.
Disabled people accessing this right to control will have the right to be told how much money they are eligible to receive for their support and they will be able to choose, in consultation with the public authority delivering the funding stream, how that money is used to meet agreed outcomes. They will also be able to choose different degrees of control.
One trailblazer, Essex county council, asked whether it could test the delegation of this statutory duty to review social care assessments to third parties such as user-led organisations. As part of our vision for adult social care, the Government have stated their expectation that, by April 2013, councils will provide personal budgets for everyone eligible for care. Evidence shows that people who have their circumstances reviewed by fellow service users, under appropriate supervision, are more likely to have their care and support needs met to their satisfaction and to request direct payments of their personal budgets to enable them to make their own support arrangements. We are therefore happy to agree to the request and the order allows the delegation of assessment functions under section 47 of the National Health Service and Community Care Act 1990. The right is being separately evaluated by Ipsos MORI and it will take account of any implications of the delegation in its report.
I fully understand how the delegation of council functions to outside bodies might raise concerns about potential risks to service users. It is always a balancing act when people are given freedom to try new ways of doing things with the aim of improving other people’s quality of life. For example, might service users be exposed to unnecessary risks? On the other hand, might they not benefit from being able to make more decisions for themselves? Functions in the social work practices have to be carried out by, or under the supervision of, a registered social worker or, in the case of the right to control, by a person with the requisite competences or qualifications. I want to assure the Committee that accountability for the care delivered to vulnerable people will not change. Each local authority will retain overall responsibility for the services delivered by the social work practice through the contract, just as it does in relation to other services. I hope that I have set out enough of the issues around both aspects of the order. I am happy to answer any further questions.
2.42 pm
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab): It is a pleasure to serve under your chairmanship, Mr Bone. I appreciate having the opportunity to speak about the important order, and I congratulate the Minister
on introducing it in his usual careful way. The Opposition support the order in principle. Many of the innovations it seeks to entrench began under the previous Government. We believe that it is important to find new ways of delivering care on the ground. It is equally important that new ways of delivering care are user led. Any of us who have dealt with disabled people or adults in need of care know how often they feel frustrated and powerless and unable to make decisions about their own lives, even when there is no financial difference either way. Inasmuch as the order helps to take forward a process where vulnerable adults and disabled people can feel empowered, we are glad to support it.The Minister will know that adults in social care are sometimes uniquely vulnerable. In the past few weeks, we have heard some sad stories about adults in social care so he will forgive me, even though we support the order in principle, if I probe a little of what he has just said. I want to raise some managerial issues and some broader issues of principle. First, will he untangle the approved provider and independent mental capacity advocate by explaining who will do what under that proposed regime? Given that social work is regulated, will he confirm that the same framework that applies to social work within a local authority structure will apply to the new set-ups under the order? Who will approve the individuals, businesses, charities and social enterprises that participate to ensure that their practice is of the highest standard?
There is no doubt that the system will pose a regulatory challenge. We have seen in recent weeks what can happen when regulation fails vulnerable adults and disabled people. If things are not working out properly for the person in receipt of care under the order, to whom should they go and how?
If the person who is part of the pilot undertaking the functions under the order is not a registered social worker—I can envisage circumstances in which they might not be, perhaps to meet the needs of cultural diversity—what check will there be on their qualifications to carry out the functions required? Who will undertake the monitoring and reporting and how long will it take? What do the Government envisage the next steps to be?
Will the terms and conditions of those to whom the work will be contracted out be comparable to those in current adult services departments? The Minister might think that that is a pedantic point, but there is no question that low pay and high turnover of staff are associated with poor care in some circumstances. The question about terms and conditions has been raised with me on a number of occasions.
The changes to the Health and Social Care Bill may have an impact, but when a new body is formed—it is anticipated that most of the new bodies will be formed by local authority employers—will there be any problems with European Union procurement and competition laws if existing employers go off and form a body that then gets a contract? I heard what the Minister said about the Ipsos MORI survey, but does the Department intend to consult patient groups or groups representing the people affected?
I have some broader points to make. Although we support the order—in my part of east London, outsourcing care in this way has provided not only innovative and
personalised care, but entrepreneurship opportunities for women and people from diverse communities, which I welcome—there is concern that, rather than bearing down on high turnover and bureaucracy, outsourcing social care to private practices could increase bureaucracy. Outsourcing in and of itself creates another form of bureaucracy though its tendering, contract monitoring and payment by results protocols and procedures. Although in principle the order represents a positive step, there is a concern on both sides of the House about how we ensure that its provisions do not get entangled in paperwork and bureaucracy. Some social workers have welcomed the opportunity that the pilots will provide, but other social workers would say—it would be remiss of me not to put this before the Committee today—that they are not frustrated entrepreneurs; they do not need a profit motive to do their best for adults in social care, and they want that recognised.The other problem is the regulatory challenge. The practices will be quite small and, particularly in the present funding climate in which, overall, local authorities are trying to cut back on funding, may be unstable and prone to takeover. The contracts, too, are relatively small, and the staff who work on them may find themselves having to worry about contract renewal, takeovers and mergers. The flow of finance from the local authority may not be as big as it could be. Will it be about payment by results? I have listened to the Minister, but that is not clear. The Opposition would argue that although in principle this is an important innovation, we are talking about small and potentially unstable units operating in a climate in which local authorities are cutting back on funding. In addition, those small privatised practices will have weak bargaining power on local authority commissioning.
Finally, it is clear from what we have heard in recent weeks about Southern Cross and the Winterbourne View home that it is important to have good regulation and good management grip. The danger is that the transfer to independent providers will weaken that grip on the day-to-day. It is all very well to know 12 months later that something did not work out and vulnerable adults were put at risk; what is important is how we get transparency and management grip day-to-day.
We support the idea that social workers should be freed up from bureaucracy; we support the idea that social workers should have the opportunity, where appropriate, to behave in a more entrepreneurial way; and we support the idea that there should be more delegated decision-making powers. In particular, disabled adults in care should have more freedom and autonomy. However, I will be grateful if the Minister answers my questions, because this is potentially an important move forward and these are important questions, which the cared-for, carers and the disabled want to be answered, because of the problems that have been raised with the public in recent weeks.
2.50 pm
Paul Goggins (Wythenshawe and Sale East) (Lab): I agree entirely with my hon. Friend. I have no philosophical difficulty with the Government’s proposal in the order, for two reasons: measures that empower service users and give them more choice are welcome; it is also important to encourage social enterprise, professional people coming together in their own organisations to
deliver services. Developing that as a model of care is a welcome step forward. However, I do have three areas of question and comment on which I would be interested to hear the Minister’s response.The first is about the choice of the pilots. I tried to jot down all the areas the Minister mentioned—I am not sure I got them all. Will he explain the difference between the pilots and the trailblazers? I noticed that Greater Manchester is in the list of trailblazers but not the list of pilots.
Paul Burstow: The trailblazer pilots pre-date the social work practice pilots. The social work practice pilots are new and will start this summer; the trailblazer pilots are already running.
Paul Goggins: I am grateful for that helpful intervention. I will focus on the pilots. I would be interested to hear on what basis the pilots were selected. The nearest to my constituency is Stoke-on-Trent. Was there a particular problem or issue in relation to Greater Manchester and the north-west of England that prevented their participation? Will the Minister explain how local authorities closer to my constituency might become involved at some stage?
The second area touches on something mentioned by my hon. Friend the Member for Hackney North and Stoke Newington: the terms and conditions of those who will work in the pilots. That is not an insignificant matter, particularly at the moment. In the representations I receive from those who provide care services, that is an important consideration, not least because local authorities such as Manchester are facing incredible cuts in the money they have available to provide services themselves or to commission others. There is a great danger that cuts that they experience inevitably get passed on, and it would be a dreadful shame if they undermined the pilots, which might show a new and effective way of providing services.
Most of us can remember how the first great contracting-out experiment—which as I remember was about how we cleaned our hospitals—resulted in some dreadful experiences, such as really lax procedures which for many years exposed patients to poor standards of cleanliness in hospitals. We need to ensure that standards are increased, not reduced, as a result of the measures. What guarantees are there in relation to terms and conditions, staff wages and so on? That needs to be part of any evaluation the Minister conducts.
The third area also relates to a point raised by my hon. Friend: the risks to which service users may be exposed. As services are contracted out, there is more complexity and diversity in the way that services are provided. I will not go into detail this afternoon of a constituency case I have raised with the Minister and may need to come back to him on, but a person designated to provide care to one of my constituents subcontracted to another individual, who turned out to be an illegal worker with no Criminal Records Bureau check, no training and no accountability—indeed, criminal activity was being engaged in. The role of the CQC will therefore be important. Has the Minister arranged with the CQC for it to have a specific stream of work to monitor the pilots, to form part of the evaluation? That would be an
important part of the evaluation and would give reassurance to people in the pilot areas that quality would be maintained.Philosophically, I not only agree with the order, but would encourage its implementation. None the less, great care needs to be taken, and the emphasis must be on increasing standards, not diminishing them.
2.55 pm
Paul Burstow: I am grateful for the comments and questions, and I will deal with the question about the CQC’s role first. In my opening remarks, I mentioned that the work is being led by an oversight board, which has a variety of members. The right hon. Member for Wythenshawe and Sale East made a good point about the need for the CQC to have an operational interest but, more important, for it to have a role in the overall governance. I will talk to my officials and we will ensure that that connection is properly made in future.
Ms Abbott: The Minister is as aware as I am of concerns expressed by people in the CQC. They have had to make job cuts, and they have spent a lot of time recently on internal managerial questions. Is he completely confident that the CQC can give the pilots the oversight that they deserve?
Paul Burstow: The hon. Lady asks a perfectly fair question, given the amount of press speculation and understandable concern about events at Winterbourne View. My judgment is that the CQC is able to discharge such functions. It has been through a transition from its responsibilities under previous legislation to the current basis on which it operates, which was set out in legislation passed by the House in 2008. That legislation came into full effect from October 2010. In terms of staffing, I authorised the recruitment of a further 75 inspectors in October last year to ensure that the organisation has sufficient inspectors to do its work. I hope that that reassures the hon. Lady.
The hon. Lady asked about regulation and whether and how the regulatory framework as it stands now, before the order, applies in the context of the delegated social work practices. Although I made this point in my opening remarks, it is worth underscoring: the organisations will be social work-led, and registered social workers will be registered with the General Social Care Council until it ceases to exist. In due course, the Health Professions Council in its remodelled form will take on the responsibility for registration and regulation of the social work profession. If the organisation or social work practice provides regulated activities under the Health and Social Care Act 2008, the practice will need to register those activities with the Care Quality Commission. This question is really about line of sight and supervision responsibilities, which will rest with social workers within the organisations. Such responsibilities will need to be described very clearly in the specifications for contracts.
The hon. Lady asked who will undertake monitoring and reporting on the project and the pilots. King’s college London will be evaluating throughout the project. There will be ongoing engagement, not only a snapshot at the end of how it all looks. Local authorities will have set up arrangements for monitoring the work of social
work practices through the conditions that they set out in the contracts that local authorities have with the practices.The hon. Lady asked a fair question about who people could complain to when something goes wrong. Complaints should, in the first instance, be directed to the social work practice. That is part of the specification. It will have to be made clear in the way the service is set up how complaints will be handled. If continuing concerns arise from a complaint, it will ultimately go back, through the process, to the local authority. As hon. Members know, in certain circumstances that may even result in the matter being raised with the ombudsman, if it goes through the whole complaints process with which many of us are familiar through our case work.
The hon. Lady’s first question was about the independent mental capacity advocate. I will have a go at untangling that, and if I do not succeed fully today, I will write to her to ensure that it is satisfactorily untangled for both of us. People receiving care from social work practices will have access to an advocate in the same way as they would if they were receiving care directly commissioned by the local authority. I will write to her to give a bit more detail on how that untangles it. Hopefully, that will help our mutual understanding.
The right hon. Member for Wythenshawe and Sale East asked about evaluation and it not just being Ipsos MORI’s responsibility. The answer is yes, of course it must go beyond polling or a survey. Service users and carers are involved in how Ipsos MORI does that work, and that is a key component of evaluation. We want to ensure that, at the end of the process, we have something that allows us to make decisions about whether the proposal offers us models that can then be extended.
The hon. Member for Hackney North and Stoke Newington said that some social workers do not want to take on the role, but she rightly also acknowledged that many other social workers are hungry for the opportunity to have the additional responsibility and opportunity. The Government are not saying that the pilots are one-size-fits-all and that one model must be followed. We have co-produced the proposal and involved many people in the design of the pilots. We are piloting not just one idea, but several things, and we hope that that will give us a rich range of lessons about how we can take social work forward.
The right hon. Gentleman asked how the pilots were selected. The main way was that we opened it up to authorities to express an interest, and 14 expressions of
interest were received. As we went through further discussions about how the programme would be rolled out, some authorities decided to drop out. If other authorities have an interest, I am sure that they closely follow the pilots’ progress. I am sure that ADASS in particular will play quite an important role in helping us to disseminate the learning among its members in the future.I think that I may have covered all of the questions that the hon. Lady and the right hon. Gentleman asked—except, of course, I have not. There are a couple more that I somehow missed. One was about terms and conditions, which is a fair point, and it would have been a great shame not to have properly answered the hon. Lady. Staff who are seconded from local authorities to the practices will remain under the same conditions for the period of the pilot. Each practice will determine the terms and conditions of other staff members, and staff conditions could form part of the conditions in the contract between the council and the social work practice, so a good deal of safeguarding is built in.
The right hon. Gentleman and the hon. Lady asked whether social work practices will have the capacity to undertake commissioning, given their size. Social work practices will need to access local authority universal services and local targeted services and to arrange to purchase or commission specialist placements and services. Social work practices will work closely with the local authority, and other local authority providers may participate in joint commissioning processes. In other words, they are about providing a network, with others, to bring together the expertise that is necessary to commission effectively. We are having pilots rather than rolling out in a blanket form, to see how well that approach works.
I hope that hon. Members feel comforted by those answers and that we have a way forward that will allow us to pilot the extension of independence and autonomy for social workers in the way that they practise their important roles in our society, including working with many of the most vulnerable in our communities. I also hope that we are empowering disabled people to be able to take control of their lives and that, through the right to control, trailblazers demonstrate that that is the right way forward.