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Baroness Thornton: My Lords, all I really need to say is that we are grateful for the thanks that have been expressed for these amendments. They would not have been possible without the fantastically expert Members of the Grand Committee who we were surrounded by and who know more than it is possible to say. My noble friend Lord Campbell-Savours had some wise words and helpful suggestions. I am very happy to say

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that we can now direct them to the chair of the CQC. I shall come back to the noble Baroness, Lady Masham, because I do not know the answer to her question at the moment.

On Question, amendment agreed to.

Lord Darzi of Denham moved Amendment No. 14:

On Question, amendment agreed to.

Clause 4 ["Regulated activity"]:

Earl Howe moved Amendment No. 15:

The noble Earl said: My Lords, I felt it right, following our debates in Grand Committee on whether Clause 2 should stand part of the Bill, to bring us back to an issue of fundamental principle regarding what the remit of the new commission should be. I am extremely worried that the decision taken in 2005 to split CSCI and to hive off the regulation of children’s social care to Ofsted was a mistake. It was a mistake that originated from two causes—a determination by the current Prime Minister, then Chancellor of the Exchequer, to slash the headline costs of regulation by merging regulators; and a conviction that was allowed to take hold in the minds of Ministers and officials that, because Ofsted concerned itself with schools and children, a takeover by Ofsted of the regulation of children’s social services would somehow be a natural fit. Neither consideration was a sound basis on which to dismember CSCI as the body regulating social care across the piece.

We need to remind ourselves that the Department of Health’s review of arm’s-length bodies, published in July 2004, contained no proposal to split CSCI or to merge it with anything else. Indeed, the review explicitly set its face against such a course. It stated that any merger with the Healthcare Commission at this time would be,

That sensible conclusion was overridden the next year in the then Chancellor’s Budget speech. The legislation integrating children’s social services with Ofsted was taken through Parliament despite the misgivings of many who have a close knowledge of social care matters, such as the noble Baroness, Lady Howarth. We are seeing now the fruits of that policy.

The Children, Schools and Families Select Committee in another place heard evidence a few weeks ago from the NSPCC and the British Association for Adoption and Fostering. They individually voiced their views that Ofsted is straining to meet the health and mental health care needs of children in care. It is not just the wisdom of hindsight that prompts me to say that this could have been predicted. At the heart of Ofsted is a mismatch. The methodology of Ofsted and the methodology of CSCI are completely different. One

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relies heavily on a tick-box approach, scoring schools on the basis of facts and statistics. The other depends critically on human interaction: physically inspecting premises, talking to staff and to service users and making value judgments about the quality of the service being delivered. In the end, an assessment of social care focuses on the competence and personal qualities of staff and the happiness of those whom they look after. I have absolutely no doubt that the senior management of Ofsted has undertaken its enlarged responsibilities with seriousness and assiduousness, but the task of assessing the quality of a school is 10 leagues removed from the task of assessing the well-being of vulnerable and sometimes damaged children in a care setting, where mental health needs and physical health needs must always be a concern.

The merger of CSCI with the Healthcare Commission, which this Bill will bring about, would have provided a much sounder basis for the regulation of children’s services than the merger which actually occurred. There are, potentially, excellent synergies between the regulation of children’s services and the regulation of healthcare and care delivered under the Mental Health Act, but those synergies are now out of reach unless, somehow, it is possible for the Government to take stock of the situation which they have created and think again about it. Let us forget, for the time being, about the rationale cited for the dismemberment of CSCI in 2005 and concentrate on what is happening now. Is Ofsted succeeding in delivering the kind of regulation of children’s services needed to give us all confidence that standards are being properly maintained? We need an honest appraisal of that question. If the answer indicates that it would be desirable to reintegrate the regulation of children’s social care with that of adult social care under the umbrella of the CQC then, despite all the criticism I have ever voiced about repeated organisations of regulators, we on this side of the House would not stand in the way of such a change. I beg to move.

8.30 pm

Baroness Tonge: My Lords, I would like to speak very briefly. It is unusual for me to disagree with the noble Earl, Lord Howe. I am looking back to long ago when I was a chair of social services in a London borough. I was always concerned about the buck-passing that used to go on between education services and social services for children. It was very difficult for the two disciplines to work together. I am also worried that the Care Quality Commission is covering so much. As you know, I have accepted now what the Government are doing, but I still think that it has an enormous brief and I just do not know how it is ever going to have enough staff. The thought that children’s services may be in there somewhere and may get lost worries me because it is one of the crucial areas that we need to keep track of in this country.

I felt pleasure that Ofsted was going to cover education and social services for children because that would bring things together. If the noble Earl feels that Ofsted may not be well equipped to cover children’s social services in the way it does education—I am quite sure he is right—we should strengthen Ofsted

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and make sure that it really is able to cover them, and that children’s services can be integrated and looked at by one inspectorate. That is a much healthier way to be than to have them separate.

Baroness Howarth of Breckland: My Lords, the noble Earl, Lord Howe, has put the argument about the difficulty of inspecting schools and children’s homes by the same methodology very eloquently. The methodology that Ofsted uses fills four boxes and in those boxes you either pass or fail, rather like school exams. In a children’s home, you cannot pass or fail; you have to be helped to reach the standard, which is that the children are going to be properly cared for holistically. Simply closing the home down—which is what happens if you are actually on the lower end of adequate—or not taking any more children into that establishment is unthinkable.

I have personal experience of Ofsted refusing to allow young people to be taken into an establishment until it was brought up to another level, although the establishment was going to continue to operate. Those difficulties put the whole establishment at risk because of economic viability. Fortunately, it brought itself up to standard, as one would expect.

I agree with the noble Baroness about the integration of services. We have reached this point; as we have said several times this evening, we are where we are. It breaks my heart to disagree with the noble Earl, Lord Howe; he knows that I am a huge admirer of him. Those services now on the ground are becoming integrated in terms of service delivery in schools and local authorities. That does not mean that you cannot change the method of inspection. That is the core of the problem—that Ofsted believes that it has an answer. Just as social care could learn from the methodology of Ofsted, because it has rigour, Ofsted too could learn about the holistic approach to services that are looking after children in terms of body, mind and soul. That is the less important message that I want the Minister to take away. After all, I was the Member who was sent to see the chief inspector because I was so determined, during the debate, to try to prevent the break-up of this regulation. Now that it has happened, further reorganisation would be disruptive. We must press for a different methodology.

Lord Warner: My Lords, we have over here the small corner of ex-directors of social services.

I have huge regard for the approach that the noble Earl, Lord Howe, takes in many areas, but in this respect I must part company with him. We have talked a lot about integration of services in relation to this Bill. I used to have to try to balance, in a tightly constrained budget, the needs of protecting children with the needs of a growing elderly population; that is not easy to do. There have always been real issues about whether we could benefit children by integrating their services across departments. If Ofsted is not doing the inspections in the way in which it should, we should take that up with Ofsted. We should get the inspection right and should not try to put the clock back and reintegrate children’s services with adult social services. That would be a step backwards. The future of adult social care is much more related to

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integration and removing the barriers between adult social care and healthcare, particularly with an ever ageing population and many people with long-term chronic conditions. We do not want to go down this path but, if we do, and if we have concerns about the way in which Ofsted carries out inspections of children’s services, children’s social services and children’s social care, the evidence should be provided and the Government should be asked to look at that.

Lord Darzi of Denham: My Lords, following the brief discussion on the interaction between Ofsted and the Care Quality Commission in Grand Committee, I appreciate the fact that the noble Earl, Lord Howe, has given me the opportunity, with Amendment No. 15, to explore how the Care Quality Commission’s registration of care service providers will fit with Ofsted’s parallel registration regime for providers of children’s social care services under the Care Standards Act 2000. That is my understanding of the purpose of Amendment No. 15.

Noble Lords will appreciate, as we have heard, that the regulation of children’s social care is now the responsibility of Ofsted. However, the regulation of children’s healthcare will remain with the healthcare regulator, the Care Quality Commission, in future. The purpose of Clause 4(2)(b) is to ensure that services are not regulated twice—by both Ofsted and the Care Quality Commission—by specifically excluding any services that are registered with Ofsted from the definition of “regulated activity”. To ensure that certain types of vital care services cannot fall between the cracks and be excluded from registration with either regulator, the definition of social care in Clause 5 is not a definition of adult social care. For example, those domiciliary care agencies which cater only for children can be within the scope of registration within the Care Quality Commission, so long as they are not already required to register with Ofsted. Alternative forms of drafting could well have resulted in neither body being able to assure the safety and quality of these vital care services. I know this is of particular concern to the Commission for Social Care Inspection. Of course, the commission and Ofsted are required to co-operate with each other, through Schedule 4 of the Bill and Ofsted’s parallel legislation, Schedule 13 of the Education and Inspections Act 2006.

I thought that most of the discussion concerned Ofsted’s qualitative functionality as a regulator. The noble Baroness, Lady Tonge, very eloquently described—and was supported by my noble friend Lord Warner—how Ofsted is able to focus on the wider interest of children and young people, allowing a comprehensive view to be taken across care, education and skills. I am also led to believe that Ofsted took experienced inspectors with a significant knowledge of the social care sector and the inspection framework that Ofsted adopted in 2007 and was identical to the one used by the Commission for Social Care Inspection. As my noble friend said, if that framework is not functioning—the noble Earl, Lord Howe, has concerns about that—I have no doubt that as we wait for the inquiry of the Select Committee on Health, we can look at the functionality of Ofsted in more depth. I hope that I have been able to explain the benefit of Clause 4 and that the amendment can now be withdrawn.



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Earl Howe: My Lords, I am grateful to all noble Lords who have spoken and I recognise that we are where we are. This series of contributions has told me very politely that I am on the wrong track. I am very grateful for the politeness and the constructive comments.

I shall go home tonight recognising that perhaps I am on the wrong track in seeking to reintegrate children’s social care with adult social care. But if there is one issue that I think we agree on, it is that we need to make sure that children’s social care is being regulated properly and that if Ofsted is in any way struggling to do the job, then it needs to have the right tools and support. I hope that this short debate has not been in vain in that sense and that Ministers will keep a watchful eye on what is happening in that sphere. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 pm

Clause 6 [Requirement to register as a service provider]:

Earl Howe moved Amendment No. 16:

(a) doctors, nurses or other healthcare workers to the National Health Service;(b) social workers to a local authority; or(c) nurses or other persons who may be employed by a service user to care for him in a private dwelling.”

The noble Earl said: My Lords, this amendment takes us to an issue which we have not previously debated at any length—the issue of employment agencies. The Department of Health’s consultation document, which sets out a registration framework to complement the provisions of the Bill, proposes, as I read it, that nurses’ agencies should cease to be regulated under the CQC. I seriously question the wisdom of this.

At the moment, agencies supplying nurses are registered by CSCI and have been registered and inspected since 1957. It is my view that patient safety requires that regulation of these nurses’ agencies should continue and that similar regulation should be introduced to agencies supplying doctors, social workers and other health professionals. The hospitals and care homes which hire agency staff have neither the expertise nor the time to carry out the appropriate background and qualification checks on temps when they suddenly find themselves desperately short of staff. Agencies must establish a pool of pre-checked staff and understand properly the complex needs of health and social care roles in order to assign staff safely. Without a validated register of agencies that can do this to recognised standards, hospitals and care homes will have no way of knowing that it is being done properly.

The Government’s proposal is that employment agencies dealing with permanent recruitment and agencies supplying temps should not be subject to registration by the CQC. The department argues that there is already adequate regulation under the Employment Agencies Act. However, under that Act there is no register of agencies able to supply healthcare staff to recognised standards. The regulatory provisions in the Act focus on worker rights rather than patient safety,

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and no routine inspection of the agencies takes place. Effectively, the inspectorate under the Employment Agencies Act does not know which all the agencies for healthcare staff are and does not check the sector expertise of those they do know. That is one area of concern.

The other area relates to the regulation of organisations involved in arranging both care and nursing in people’s own homes—domiciliary care agencies. As I understand it, the intention is that regulation of these agencies should continue. However, there is a signal omission in the consultation document that I should like to query with the Minister. Domiciliary care agencies, whether for nursing or care, consist of three types. First, there are agencies known as direct service providers, which deliver a fully managed care service, and most, I understand, are of this kind.

The second kind is employment businesses—a term of art, I believe—which supply staff to work under the direction and control of the service user. This sort of agency is becoming less prevalent but is regulated by CSCI to the same standards as direct service providers. If these agencies supply nurses, they have to register with CSCI as nurses’ agencies, even though they may be registered already under the Employment Agencies Act. However, the need for dual registration will cease under the current proposals.

The third kind of agency is employment agencies that merely introduce care workers to service users, which then employ those individuals directly without the agency being involved in any way with the employment contract. Usually, the nurse or care worker will be employed under a series of fixed-term employments lasting two or three weeks and will live at the home of the service user. This type of agency comprises only a minority of domiciliary employment agencies but they are a significant minority. The key difference here is that the agency has no control over, or contract with, the worker during the time that he or she is employed by the service user. At present, these agencies are regulated by CSCI to a specially shortened set of standards which reflect that fact.

The wording of the scope of registration in the consultation clearly includes the first two types of domiciliary care agency—that is, direct service providers and employment businesses—but it does not appear to encompass employment agencies at all. Indeed, there is no mention in the consultation of the kind of special arrangement that these agencies have in supplying staff to service users—a fact which indicates to me that the omission is a real one. Considerable numbers of people rely on the employment agency model to secure cost-effective and very flexible care. They also rely on a system of regulation which ensures that these agencies operate in a way that protects patients in an effective fashion.

Although this is a somewhat technical area, it is important, and I should be grateful if the Minister could reassure me that he will look closely at the concerns that I have raised and re-examine the department’s policy. There are some important question marks over the scope of regulation in the area of employment agencies and these need to be resolved. I beg to move.



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Baroness Tonge: My Lords, first, I am delighted this time to support the noble Earl, Lord Howe, in Amendment No. 16. I am amazed that this had not occurred to me or anyone else in Committee. I suppose that we all made assumptions—I assumed that agencies employing staff used in health and social care would somehow be covered. I could not believe that that was not so. I support the noble Earl and look forward to hearing the Minister's response and his reassurance that the Bill covers what the amendment is intended to cover.

Baroness Howarth of Breckland: My Lords, the noble Earl has set out the case very clearly, but I wanted to follow through briefly on the area of accountability. The noble Earl said that some care homes or establishments might be too busy to make checks. Organisations that are accountable for running a service must have the time to carry out appropriate checks. That means that there is probably a double set of checks on the agency supplying the person, but also on those who are using the services. The noble Earl has put his finger on exactly the right point in the third category he mentions, where people are being supplied to individuals and there appears to be a real gap in regulation. That is exactly where there needs to be regulation.

Lord Darzi of Denham: My Lords, we have been consulting on which particular types of care services should be within the scope of registration with the Care Quality Commission. The consultation, which closes tomorrow, on 17 June, is particularly relevant to Amendment No. 16, because we are waiting until we have carefully considered the responses to the consultation before determining the range of agencies that will be regulated by the commission. I am grateful to the noble Earl for raising the issue and have no doubt that after receiving the responses tomorrow, we shall come back at Third Reading to address any gaps in the clauses.


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