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Amendments 118 and 119 also refer to the complaints procedures and the duties of the local commissioner in response to statements that are prepared. These amendments come from Help the Aged and Age Concern, soon to be a new charity for older people. Those bodies, like many Members of this Committee, are grateful that the Government listened to all the points made by noble Lords during the passage of the Health and Social Care Act. Older people who receive privately arranged or self-funded social care now have recourse to an individual complaints procedure, set out in Schedule 5 of the Bill. That is a welcome step forward.
However, self-funders and those who arrange their own social care are still outwith the scope of the Human Rights Act, even though they may live in residential care and may be quite vulnerable. It is therefore important that they have protection and access to a robust complaints procedure. The amendment’s purpose is to move the Care Quality Commission and the local authorities up into the group of people who must receive reports of complaints, rather than those who might or may. If the CQC is to carry out its job, and local authorities are to be able to pin-point those
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In addition, I suggest that the local commissioner has to be adequately trained and resourced to deal with this new role. They should have a duty to inform the CQC of any negative outcomes from a complaint.
Baroness Thornton: I will address Amendments 116, 117 and 120 tabled by the noble Earl, Lord Howe, and Amendments 118 and 119, tabled by the noble Baroness, Lady Barker.
Amendment 116 is aimed at restricting the scope of the new scheme in terms of the type of activity that is covered. New Section 34A sets out that the scheme applies to “adult social care providers”. An adult social care provider is defined as a person who carries on an activity which involves, or is connected with, the provision of adult social care. The noble Lord’s amendment would restrict the definition of “adult social care provider”, omitting the activities that are “connected with” the provision of adult social care. The noble Baroness, Lady Barker, referred to this and she was right.
Our aim is to achieve consistency between the coverage of this new scheme and that of the registration system to be operated by the Care Quality Commission. As noble Lords may recall when we discussed this under the 2008 Act, an activity may be regulated by the CQC only if the activity involves, or is connected with, the provision of health or social care in, or in relation to, England.
The 2008 Act goes on to say that activities “connected with” the provision of health or social care include, in particular, the supply of staff who are to provide such care; the provision of transport or accommodation for those who require such care; and the provision of advice in respect of such care. I think that that illustrates very well the sorts of activity we mean when we refer to being connected with the provision of care.
The new CQC regulatory scheme is due to come into effect in April 2010. The Government consulted on the scope of registration last year. We will shortly publish the response to this consultation together with a consultation on draft regulations that will set out the scope of registration. I believe it is the right approach for the same activities regulated by the CQC to come within the scope of this new complaints scheme.
Amendment 117 seeks to remove the ombudsman’s power to determine whether someone may be represented, legally or otherwise, in an investigation. This section deals with the procedure for conducting an investigation. The ombudsman can generally decide how to conduct the investigation. He may obtain information and make inquiries from any person as he sees fit. New Section 34F(4)(c) additionally is intended to clarify particular aspects of the discretion conferred on the ombudsman in the investigation procedure. It does not itself give the ombudsman that discretion. In particular, the ombudsman may restrict the presence and role of representatives acting for witnesses or for the complainant when interviewed. The aim is to
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Permit me to illustrate this with the example of the ombudsman’s current investigation procedures relating to local authorities. That is what this reflects. Interviewees may often have a friend present, who may be a relative, trade union official or a lawyer. They are there to give support to the interviewee and not to provide evidence. In cases where the ombudsman interviews a local government officer, the ombudsman may stipulate that the friend may not be an officer of the authority with previous involvement in the complaint, a legal officer of the authority, or the superior or junior officer of the interviewee. This is to avoid a conflict of interest or undue pressure being placed on the witness.
New Section 34F(4)(c) gives the ombudsman the same powers as under Part 3 of the 1974 Act governing his functions in respect of complaints about local councils. The intention is for the two schemes to be run as similarly as possible. Furthermore, all the UK public services ombudsmen have similar powers.
I now address Amendments 118 and 119, which seek to put the local government ombudsmen under a duty to send a copy of all statements they will produce about their investigations to the CQC and local authorities which may have an interest in the matter. I very much understand the aims of these amendments, which is to ensure that the CQC and relevant local authorities get to know about the complaints received by the ombudsman and factor them into their decisions relating to regulation and commissioning respectively.
Currently, new Section 34H(7) gives the ombudsman a power to send copies of statements to the CQC and to local authorities. That, of course, is a power, not a requirement. It differs from the provisions of subsection (6) where there is a requirement to send copies to the complainant, to the provider, to any person alleged to have taken or authorised the action which was the subject of the investigation, and to any other person who appears to the ombudsman to have taken or authorised such action. I believe that noble Lords would agree that it is absolutely right that copies of the ombudsman’s statements should always be sent to those people.
However, statements will be produced about all complaints received by the ombudsman. Many of the statements would be of little or no interest to either the CQC or local authorities; for example, where the ombudsman has decided not to investigate and the statement simply gives his reasons for that; or where an investigation is discontinued because of lack of evidence of failure by the provider or injustice to the complainant. Of course, the complainant and provider must see the statement of why the ombudsman is not investigating, but it would rarely be of interest to the CQC.
I therefore do not believe that it would be necessary in all cases to send copies to the CQC and to relevant local authorities. It would, on the other hand, be entirely right for the ombudsman, having completed an investigation and made recommendations, or having discontinued an investigation because the provider has
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I am sure the ombudsman will want to develop a protocol with the CQC and with local social services authorities collectively, so that they receive only that information that they consider to be useful and relevant to the discharge of their functions. I should also point out that the ombudsman is empowered in new Section 34P to disclose any information to the CQC if this appears to be of interest to it in its role as a regulator. This information could be in a different form to that in the statement. The provisions in the Bill allow the necessary degree of flexibility for the ombudsman, enabling appropriate rather than compulsory communication.
Amendment 120 relates to new Section 34H. Our intention in subsection (8) is to give the ombudsman discretion over whether it is appropriate for a provider to be identified in the ombudsman’s statement. The statement must not identify the complainant or any other person other than the provider, unless the ombudsman considers it necessary. This amendment would mean that a statement by the ombudsman could not identify the provider if they were an individual; nor could it do so if, in the ombudsman’s opinion, an individual, including, for example, the complainant or another service user, was likely to be identified by publishing the provider’s name. That would be the case whether the provider were an individual or an organisation. By removing the discretion, the position would then be that it would never be appropriate to identify a provider that is an individual, and there would be many cases where a corporate provider could also not be identified. The ombudsman would normally wish to name the provider in the statement, for the very good reason that it is the public statement of the ombudsman’s conclusions on a complaint. The provision is therefore worded in a way that allows that but it recognises that there may be human rights issues in doing so, such as where there are risks to the privacy of the individual provider.
The ombudsman will also want to ensure that an individual service user cannot be identified as a result of naming the provider in the statement. However, even though naming the provider risks identifying the complainant, the complainant may actively wish the provider to be named. The individual service user just may not be concerned about being identified. The point of the provision is that the ombudsman can decide on the merits of the particular case. It would be very difficult to make provision for the precise circumstances where identification is or is not appropriate, which is why we believe the best approach is to allow the ombudsman discretion.
As I mentioned in the context of Amendments 118 and 119, the ombudsman is empowered in new Section 34P to disclose any information to the CQC if this appears to be of interest to it. The information would not be subject to the limitations about identification.
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Earl Howe: I am grateful to the Minister for her reply. I am pretty satisfied with her reply on Amendment 120, but I am still very uneasy about my other two amendments. She was right to point out that the words “involves” or “is connected with” are a mirror image or transposition of the wording used in the 2008 Act but, as she also pointed out, the definition in that Act was made narrower by way of examples of what “is connected to” actually means. Here, if it is left entirely open, there is scope for people to argue that someone servicing a motor vehicle is an adult social care provider, which would be very undesirable.
More serious is the reply that she gave on Amendment 117. It is entirely right and understandable that a local commissioner should have the power to decide how proceedings are run and lay down the procedure applicable to a hearing and so on, but that is not the same thing as deciding that a person may not be represented.
The wording appears to say that a person may not be represented at all. The noble Baroness’s reply indicated that what is meant here is that the local commissioner could decide that a particular person was an unsuitable representative. If that is intended, I should prefer to see that made clear here. As it is, the wording is very widely drawn and it could be taken to mean that the local commissioner has a very sweeping power. I am not entirely happy with that situation and I wonder whether, between now and the next stage, further thought could be given to that point.
7.30 pm
Baroness Barker: Perhaps I may seek clarity. My understanding of what the noble Baroness said is that in practice the ombudsman has the power to decide whether a person will have any representation of any kind, not the nature of that representation. That power exists for a very good reason: it is a means of attempting to ensure that a minor matter does not escalate. If an individual arrives with a QC, unsurprisingly the local authority will go on the defensive and the whole thing can spiral. My understanding is that all ombudsmen have that power. When the noble Baroness writes to the noble Earl, perhaps she could cast an eye over this matter and also give examples of how this works in practice, not just in the field of social care. I think that all Members of the Committee would find that helpful.
Earl Howe: That was an extraordinarily helpful intervention by the noble Baroness. I certainly take her point but equally one could imagine circumstances in which someone who needed help in presenting a case—and it might be a good case—was prevented from doing so because the ombudsman decided, for whatever reason, that representation was not appropriate. Therefore, one would hope that the rules that the
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Amendments 117 to 120 not moved.
Baroness Thornton: I shall also address Amendments 121 and 122 tabled by the noble Earl, Lord Howe. Although I am not surprised that he did so, I compliment the noble Earl on noticing the drafting error in new Section 34T in the published version of the Bill. I am most grateful for his amendments, which seek to correct the error in the definition of “person affected”. The word “means” is repeated unnecessarily.
I have tabled a government amendment seeking to correct the same drafting error in a slightly different way. This amendment leaves out the word “means” in line 37, instead of leaving out “means” in lines 39 and 45. I believe that that makes the provision clearer, although I remain grateful to the noble Earl, Lord Howe, for bringing this point to our attention. In the circumstances, perhaps he will be content not to press his amendments and agree that mine remedies the mistake. I beg to move.
Baroness Anelay of St Johns: Before my noble friend speaks to his amendments, the expectation is that this may be the last group of amendments. It is my understanding that there is an agreement that, as always, this Session should complete as close to 7.45 pm
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Baroness Thornton: We intend to adjourn after this.
Earl Howe: I can tell that the Minister just wants to be different —and why not? I note in passing that whereas my amendments would have removed two words from the Bill, hers removes one, which I cannot help thinking is not quite such an economical approach; Occam’s razor ought to apply, and all that. Nevertheless, of course I do not go so far as to object to Amendment 120A, and I thank her for her remarks.
Incidentally, the Public Bill Office discouraged me from tabling another amendment to this same sub-paragraph where it says,
I thought that the ombudsman would want that corrected, and no doubt it can be without the need for an amendment.
Amendments 121 and 122 not moved.
Schedule 5, as amended, agreed.
Baroness Thornton: This is a convenient point for the Committee to adjourn. I understand that we will reconvene on Tuesday 17 March at 3.30 pm.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): The Committee stands adjourned until next Tuesday, 17 March, at 3.30 pm.
Committee adjourned at 7.37 pm.
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