Schedule 5
Health and Social Care Bill
3:45 pm

Further amendments relating to Part 1

Photo of Ben Bradshaw

Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

I beg to move amendment No. 248, in schedule 5, page 122, line 38, leave out sub-paragraph (2) and insert—

‘(2) For subsection (3A) substitute—

“(3A) But the functions which may be so specified do not include functions of making, confirming or approving subordinate legislation (as defined by section 158(1) of the Government of Wales Act 2006).”’.

Photo of Jimmy Hood

Jimmy Hood (Lanark and Hamilton East, Labour)

With this it will be convenient to discuss Government amendments Nos. 179 to 194 and Government amendment No. 178.

Photo of Ben Bradshaw

Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

Amendment No. 248 relates, as I mentioned earlier, to the requests of Welsh Ministers. It puts in place new powers for Welsh Ministers in relation to the Care Standards Act 2000.

Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

The best that the Opposition can do in relation to these amendments is to note them. They are obviously the result of discussions and negotiations. The only thing that concerns us is to ensure that, as we consider the inter-relationship with what is going to happen under the auspices of Welsh Ministers, the Minister keeps in mind the fact that we will be perpetually seeking reassurances about the consistency of approach between Wales and England. He is more than well aware that it is a genuinely live issue. It is not only to do with things being better on one side of the border, or the other. It will have a real effect for those who represent constituencies on the border between Wales and England. It would be helpful to get it right, as we would all be dealing with fewer of the cases on border inconsistencies that tend to fill our surgeries. On that basis, I am happy to note the Government amendments.

Amendment agreed to.

Amendments made: No. 179, in schedule 5, page 123, line 16, at end insert—

“14A Suspension of registration

(1) The Welsh Ministers may at any time suspend for a specified period the registration of a person in respect of an establishment or agency for which the Welsh Ministers are the registration authority.

(2) Except where the Welsh Ministers give notice under section 20B, the power conferred by subsection (1) is exercisable only on the ground that the establishment or agency is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements.

(3) The suspension of a person’s registration does not affect the continuation of the registration (but see sections 24A and 26 as to offences).

(4) A period of suspension may be extended under subsection (1) on one or more occasions.

(5) Reference in this Part to the suspension of a person’s registration is to suspension under this section, and related expressions are to be read accordingly.

(6) In this section “relevant requirements” has the same meaning as in section 14.”’.

No. 180, in schedule 5, page 123, line 17, at end insert—

‘(za) in subsection (1), at the end of paragraph (b) insert “or—

“(c) for the cancellation of, or the variation of the period of, any suspension of the registration.”’.

No. 181, in schedule 5, page 123, line 18, leave out from ‘(3)’ to end of line 19 and insert—

‘(i) after “(a)” insert “or (c)”, and

(ii) for the words from “a fee of—” to the end substitute “a fee of the prescribed amount”,’.

No. 182, in schedule 5, page 123, line 19, at end insert—

‘(ab) after subsection (4) insert—

“(4A) If the Welsh Ministers decide to grant an application under subsection (1)(c), they must serve notice in writing of their decision on the applicant (stating, where applicable, the period as varied).”, and’.

No. 183, in schedule 5, page 123, line 26, at end insert—

‘14A In section 17 of the 2000 Act (notice of proposals)—

(a) in subsection (4), after “section 20” insert “or 20A or gives notice under section 20B”,

(b) after paragraph (a) of that subsection insert—

“(aa) to suspend the registration or extend a period of suspension;”, and

(c) in subsection (5), after “(a)” insert “or (c)”.

14B In section 19 of the 2000 Act (notice of decisions), in subsection (4)—

(a) omit the word “and” at the end of paragraph (b), and

(b) after that paragraph insert—

“(ba) in the case of a decision to adopt a proposal under section 17(4)(aa), state the period (or extended period) of suspension; and”.’.

No. 184, in schedule 5, page 123, line 27, leave out paragraph 15 and insert—

‘15 (1) Section 20 of the 2000 Act (urgent procedure for cancellation etc) is amended as follows.

(2) In subsection (1)—

(a) after “If” insert “in respect of an establishment or agency for which the CIECSS is the registration authority”,

(b) in paragraph (a), for “the registration authority” substitute “the CIECSS”, and

(c) in sub-paragraph (i) of that paragraph, for “an” substitute “the”.

(3) In subsection (3), for “the registration authority” substitute “the CIECSS”.

(4) In subsection (5), for “the registration authority” substitute “the CIECSS”.

(5) For subsection (6) substitute—

“(6) For the purposes of this section the appropriate authorities are—

(a) the local authority in whose area the establishment or agency is situated; and

(b) any other statutory authority whom the CIECSS thinks it appropriate to notify.”

(6) Accordingly, for the heading of section 20 substitute “Urgent procedure for cancellation, variation etc: England”.’.

No. 185, in schedule 5, page 123, line 31, at end insert—

‘15A After section 20 of the 2000 Act insert—

“20A Urgent procedure for cancellation: Wales

(1) If in respect of an establishment or agency for which the Welsh Ministers are the registration authority—

(a) the Welsh Ministers apply to a justice of the peace for an order cancelling the registration of a person in respect of the establishment or agency, and

(b) it appears to the justice that, unless the order is made, there will be a serious risk to a person’s life, health or well-being,

the justice may make the order, and the cancellation has effect from the time when the order is made.

(2) An application under subsection (1) may, if the justice thinks fit, be made without notice.

(3) As soon as practicable after the making of an application under this section, the Welsh Ministers must notify the appropriate authorities of the making of the application.

(4) An order under subsection (1) is to be in writing.

(5) Where such an order is made, the Welsh Ministers must, as soon as practicable after the making of the order, serve on the person registered in respect of the establishment or agency—

(a) a copy of the order, and

(b) notice of the right of appeal conferred by section 21.

(6) For the purposes of this section the appropriate authorities are—

(a) the local authority in whose area the establishment or agency is situated,

(b) the Local Health Board in whose area the establishment or agency is situated, and

(c) any statutory authority not falling within paragraph (a) or (b) whom the Welsh Ministers think it appropriate to notify.

(7) In this section “statutory authority” has the same meaning as in section 20.

20B Urgent procedure for suspension or variation etc: Wales

(1) Subsection (2) applies where—

(a) a person is registered under this Part in respect of an establishment or agency for which the Welsh Ministers are the registration authority, and

(b) the Welsh Ministers have reasonable cause to believe that unless they act under this section any person will or may be exposed to the risk of harm.

(2) Where this subsection applies, the Welsh Ministers may, by giving notice in writing under this section to the person registered in respect of the establishment or agency, provide for any decision of the Welsh Ministers that is mentioned in subsection (3) to take effect from the time when the notice is given.

(3) Those decisions are—

(a) a decision under section 13(5) to vary or remove a condition for the time being in force in relation to the registration or to impose an additional condition;

(b) a decision under section 14A to suspend the registration or extend the period of suspension.

(4) The notice must—

(a) state that it is given under this section,

(b) state the Welsh Ministers’ reasons for believing that the circumstances fall within subsection (1)(b),

(c) specify the condition as varied, removed or imposed or the period (or extended period) of suspension, and

(d) explain the right of appeal conferred by section 21.”’.

No. 186, in schedule 5, page 123, line 31, at end insert—

‘15B (1) Section 21 of the 2000 Act (appeals to the Tribunal) is amended as follows.

(2) In subsection (1)(b), after “20” insert “or 20A”.

(3) In subsection (3), after “authority” insert “, other than a decision to which a notice under section 20B relates,”.

(4) After subsection (4) insert—

“(4ZA) On an appeal against a decision to which a notice under section 20B relates, the Tribunal may confirm the decision or direct that it shall cease to have effect.”

(5) In subsection (5)—

(a) omit the word “or” at the end of paragraph (b), and

(b) after paragraph (c) insert “; or

(d) to vary the period of any suspension.”

(6) After subsection (5) insert—

“(6) Subsection (1) does not apply to a decision of the Welsh Ministers under section 30ZA (penalty notices).”’.

No. 187, in schedule 5, page 123, line 34, at end insert—

‘16A After section 24 of the 2000 Act insert—

“24A Offences relating to suspension

(1) If a person who is registered under this Part in respect of an establishment or agency carries on or (as the case may be) manages the establishment or agency while the person’s registration is suspended, the person is guilty of an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

16B In section 26 of the 2000 Act (false descriptions of establishments and agencies), after subsection (1) insert—

“(1A) If a person’s registration under this Part has been suspended, the registration is to be treated for the purposes of subsection (1) as if it had not been effected.”’.

No. 188, in schedule 5, page 123, line 35, leave out paragraph 17 and insert—

‘17 In section 29 of the 2000 Act (proceedings for offences)—

(a) for subsection (1) substitute—

“(1) Proceedings in respect of an offence under this Part or regulations made under it shall not, without the written consent of the Attorney General, be taken by any person other than the CIECSS or the Welsh Ministers.”,

(b) in subsection (2), for “a period of six months” substitute “the permitted period”, and

(c) after subsection (2) insert—

“(3) “The permitted period” means—

(a) in the case of proceedings brought by the Welsh Ministers, a period of 12 months;

(b) in any other case, a period of 6 months.”’.

No. 189, in schedule 5, page 123, line 37, at end insert—

‘17A After section 30 of the 2000 Act insert—

“Penalty notices

30ZA Penalty notices

(1) Where the Welsh Ministers are satisfied that a person has committed a fixed penalty offence, they may give the person a penalty notice in respect of the offence.

(2) A fixed penalty offence is any relevant offence which—

(a) relates to an establishment or agency for which the Welsh Ministers are the registration authority, and

(b) is prescribed for the purposes of this section.

(3) A relevant offence is—

(a) an offence under this Part or under regulations made under this Part, or

(b) an offence under regulations made under section 9 of the Adoption and Children Act 2002.

(4) A penalty notice is a notice offering the person the opportunity of discharging any liability to conviction for the offence to which the notice relates by payment of a penalty in accordance with the notice.

(5) Where a person is given a penalty notice, proceedings for the offence to which the notice relates may not be instituted before the end of such period as may be prescribed.

(6) Where a person is given a penalty notice, the person cannot be convicted of the offence to which the notice relates if the person pays the penalty in accordance with the notice.

(7) Penalties under this section are payable to the Welsh Ministers.

(8) In this section “prescribed” means prescribed by regulations made by the Welsh Ministers.

30ZB Penalty notices: supplementary provision

(1) The Welsh Ministers may by regulations make—

(a) provision as to the form and content of penalty notices,

(b) provision as to the monetary amount of the penalty and time by which it is to be paid,

(c) provision determining the methods by which penalties may be paid,

(d) provision as to the records to be kept in relation to penalty notices,

(e) provision for or in connection with the withdrawal, in prescribed circumstances, of a penalty notice, including—

(i) repayment of any amount paid by way of penalty under a penalty notice which is withdrawn, and

(ii) prohibition of the institution or continuation of proceedings for the offence to which the withdrawn notice relates,

(f) provision for a certificate—

(i) purporting to be signed by or on behalf of a prescribed person, and

(ii) stating that payment of any amount paid by way of penalty was or, as the case may be, was not received on or before a date specified in the certificate,

to be received in evidence of the matters so stated,

(g) provision as to action to be taken if a penalty is not paid in accordance with a penalty notice, and

(h) such other provision in relation to penalties or penalty notices as the Welsh Ministers think necessary or expedient.

(2) Regulations under subsection (1)(b)—

(a) may make provision for penalties of different amounts to be payable in different cases, including provision for the penalty payable under a penalty notice to differ according to the time by which it is paid, but

(b) must secure that the amount of any penalty payable in respect of any offence does not exceed one half of the maximum amount of the fine to which a person committing the offence would be liable on summary conviction.

(3) In this section—

“penalty” means a penalty under a penalty notice;

“penalty notice” has the meaning given by section 30ZA(4).”’.

No. 190, in schedule 5, page 123, line 37, at end insert—

‘17B (1) In section 30A of the 2000 Act (notification of matters relating to persons carrying on or managing certain establishments or agencies), inserted by section 25 of the Children and Young Persons Act 2008, subsection (2) is amended as follows.

(2) After paragraph (a) insert—

“(aa) has decided to adopt a proposal under section 17(4)(aa) to suspend the registration of P in respect of the establishment or agency or to extend any such suspension,

(ab) has given a notice under section 20B to suspend the registration of P in respect of the establishment or agency or to extend any such suspension,”.

(3) Omit the word “or” at the end of paragraph (b).

(4) At the end of paragraph (c) insert “or—

(d) has given P a penalty notice under section 30ZA in respect of an offence which it alleges P committed in relation to the establishment or agency and P has paid the penalty in accordance with the notice,”.’.

No. 191, in schedule 5, page 125, line 6, at end insert—

‘22A After section 118 of the 2000 Act insert—

“118A Regulations: Wales

(1) This section has effect where a power to make regulations under this Act is conferred on the Welsh Ministers other than by or by virtue of the Government of Wales Act 2006.

(2) Subsections (1) and (5) to (7) of section 118 apply to the exercise of that power as they apply to the exercise of a power conferred on the Welsh Ministers by or by virtue of that Act.

(3) A statutory instrument containing regulations made in the exercise of that power is subject to annulment in pursuance of a resolution of the Assembly.”’.

No. 192, in schedule 5, page 125, line 6, at end insert—

‘22B In section 120 of the 2000 Act (Wales) omit subsection (1).’.—[Mr. Bradshaw.]

Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment No. 86, in schedule 5, page 125, line 33, leave out ‘omit paragraph (b)’ and insert

‘leave out “CHAI” and insert “Care Quality Commission”.’.

Photo of Jimmy Hood

Jimmy Hood (Lanark and Hamilton East, Labour)

With this it will be convenient to discuss the following: amendment No. 87, in schedule 5, page 125, line 35, leave out ‘omit paragraph (b)’ and insert

‘leave out “CSCI” and insert “Care Quality Commission”.’.

New clause 4—Complaints procedure

‘(1) In any case where a complainant is not satisfied with the result of an investigation by an independent provider, he may request the Commission to consider the complaint.

(2) On receipt of a complaint under subsection (1) the Commission must assess the nature and substance of the complaint and decide how it should be handled, having regard to—

(a) the views of the complainant;

(b) the views of the body complained about;

(c) any other relevant circumstances;

and as soon as reasonably practicable the Commission must notify the complainant as to its decision.

(3) The Commission may conduct its investigation in any manner which seems to it appropriate, may take such advice as appears to it to be required and, having regard in particular to the views of the complainant and any person who or body which is the subject of the complaint, may appoint a panel to hear and consider evidence.

(4) The Commission may request any person or body to produce such information and documents as it considers necessary to enable a complaint to be considered properly.

(5) Where the Commission investigates a complaint it must, as soon as reasonably practicable, prepare a written report of its investigation which—

(a) summarises the nature and substance of the complaint;

(b) describes the investigation and summarises its conclusions, including any findings of fact, the Commission’s opinion of those findings and its reasons for its opinion;

(c) recommends what action should be taken and by whom to resolve the complaint; and

(d) identifies what other action, if any, should be taken and by whom.’.

New clause 5—Independent Complaints Body

‘(1) The Commission shall establish and maintain a committee to be known as ‘The Independent Complaints Body’.

(2) In any case where a complainant is not satisfied with the result of an investigation by an independent provider, he may request the Independent Complaints Body to consider the complaint.

(3) On receipt of a complaint under subsection (1) the Independent Complaints Body must assess the nature and substance of the complaint and decide how it should be handled having regard to—

(a) the views of the complainant;

(b) the views of the body complained about; and

(c) any other relevant circumstances;

and as soon as reasonably practicable the Independent Complaints Body must notify the complainant as to its decision.

(4) The Independent Complaints Body may conduct its investigation in any manner which seems to it appropriate, may take such advice as appears to it to be required and, having regard in particular to the views of the complainant and any person who or body which is the subject of the complaint, may appoint a panel to hear and consider evidence.

(5) The Independent Complaints Body may request any person or body to produce such information and documents as it considers necessary to enable a complaint to be considered properly.

(6) Where the Independent Complaints Body investigates a complaint it must, as soon as reasonably practicable, prepare a written report of its investigation which—

(a) summarises the nature and substance of the complaint;

(b) describes the investigation and summarises its conclusions, including any findings of fact, the Independent Complaints Body’s opinion of those findings and its reasons for its opinion;

(c) recommends what action should be taken and by whom to resolve the complaint; and

(d) identifies what other action, if any, should be taken and by whom.’.

Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

New clause 4 seeks to establish a complaints handling function within the Care Quality Commission. Hon. Members will note that we skipped lightly across some earlier parts of the Bill because we had the promise and the prospect of dealing with this important issue more appropriately at this point.

New clause 5 seeks to establish an independent complaints handling body. Amendments Nos. 86 and 87 would neutralise the Government’s attempts to remove this responsibility through amendments to the 2003 Act in respect of the CQC and the complaints framework. I should state from the outset that the argument for removing the complaints handling function from the CQC has some merits given that it has been such a drain on the Healthcare Commission’s resources. During the oral evidence sessions, Dame Janet Smith, now Lady Justice Smith, stated that

“health care complaints are in a mess and causing great dissatisfaction.——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 44.]

In considering these amendments, the Committee must consider where such complaints will go, and if it is happy with the status quo as concerns social care complaints, where part-funders and self-funders have no recourse to second-tier complaints. That point was also made by the hon. Member for Romsey during  discussion of another part of the Bill. We have to look at whether the Committee is happy that the places where such complaints will go will be allowed to remain.

As regards the quality of complaints, the Committee should note that there are approximately 95,000 complaints in the NHS per annum. The Healthcare Commission reviews about 5 per cent., which is some 7,600 complaints. My figures have been derived from a series of parliamentary questions and other sources. In 2006-07, the health ombudsman received 863 complaints, 239 of which were to do with continuing care and 623 with other health matters. In the same year, the local government ombudsman dealt with six complaints into adult care services and two complaints into residential care. I do not have the figures for local authorities. If the Minister has them, it will be very helpful to view them.

The Healthcare Commission handled 5,867 complaints in 2004-05, 7,644 a year later, and 7,696 a year after that. In 2007-08, up to 14 December last year, 5,515 complaints were made. I hope that that gives the Committee some idea of the scale of what we have to tackle here.

I am grateful for the Minister’s confirmation this morning that the backlog of complaints for the past two years was 5,180 and 2,298 respectively. The Healthcare Commission is reaching its estimated target of closing 95 per cent. of complaints within two months, which is encouraging. All Committee members will have had letter from constituents complaining about the inordinate length of time it has taken to consider and complete some complaints. We would all like to see a more streamlined approach, but one that is still effective.

The Committee will also be aware of the written submission of the parliamentary ombudsman. I am sure that the Minister will seek to remind the Committee that the parliamentary ombudsman states:

“I fully support the Department’s proposals.”

However, her evidence throws up some important statistical questions that the Minister should answer before the Committee allows the CQC to lose its complaints function.

In the final paragraph of her evidence, the ombudsman states:

“I have already explored with the Treasury the additional funding I am likely to require.”

On that hangs her evidence and presumably her support. I would not want to criticise her of empire building, but I think that it is important that the Committee is aware of what additional funding she is likely to require especially as the first cut from the CQC will be reported as a gross saving by the Department, but could be a net loss to the taxpayer. The Committee also should know what costs to the Exchequer it is voting for as a result of the proposals in the Bill. The ombudsman refers to forecast increases in her work load. She notes that

“in the short term the changes will result in an increase in the number of enquiries made to my office and the number of investigations I undertake...as evidence I note that when the Scottish health system moved to a similar model, the number of investigations increased, but not unmanageably so”.

It would be useful if the Minister could tell the Committee, or write to it to explain what “short term” means in that context, what the figures in Scotland were, and what the forecast figures in the case of England are.

The Department has not so far provided an assessment of the increase in work load for the ombudsman. On Second Reading, the Secretary of State said:

“We will stay in touch with the ombudsman to see whether staffing is sufficient to ensure that they can cope with any increase in work.”—[Official Report, 26 November 2007; Vol. 44, c. 468.]

The Minister said that the Government discussed capacity with her and that she is satisfied that she will not be overburdened, but that they will have to deal with those issues carefully. I hope that he is in a position to give the Committee firmer figures today.

It would be helpful if the Minister could expand on the difference between the nature of complaints investigation by the Healthcare Commission, and the nature of complaints handling by the ombudsman, as the latter looks at maladministration or service failure.

The Committee would also be reassured if the Government would outline how the winding-up of the complaints process at the Healthcare Commission, and the handing over to the ombudsman, will work out. Obviously, local providers will need time, with the commission in support, to bring their own complaints systems up to scratch. We cannot have a system whereby the ombudsman wakes up one morning with 7,000 complaints on her hands.

Another issue that the Committee should consider is the lack of a two-tier complaints structure for social care. Currently, people who have their care part funded or wholly funded by the local authority can complain through the local authority social services complaints procedure. That was raised by my hon. Friend the Member for Tiverton and Honiton in her excellent example on the previous amendment. If people are dissatisfied with the outcome of their complaint, they can ask the local government ombudsman to investigate.

Self-funders have no such option. They are at the mercy of their own home's complaints procedure, and have no other avenue apart from the courts. This debate very much plays back into the ongoing debate that this Committee has had about human rights—a number of hon. Members throughout the House are very exercised by that, and rightly so—and the disjunction between the public and private sectors in this area.

During a Westminster Hall debate on vulnerable adults, the Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), stated:

“The problem is that self-funders, of whom there are an increasing number, have nowhere to go if they are dissatisfied with the way in which the provider investigates their complaints. The regulator, as things now stand, does not investigate individual complaints. On receipt of such a complaint, the regulator can visit the home, examine practices there and take action, but they cannot investigate the individual complaint. That is an important distinction. I am committed to considering how that can be put right. In a modern care system, it is unacceptable that self-funders should not have the protection  that other residents have of being able to rely on an independent element in the process, if they are dissatisfied with the handling of a complaint by the very home that they are complaining about.”—[Official Report, Westminster Hall, 11 December 2007; Vol. 469, c. 52WH.]

Sitting suspended for a Division in the House.

On resuming—

4:18 pm
Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

Before the sitting was suspended, I was referring to what the Under-Secretary said on 11 December 2007 at column 52 of the Official Report. It is odd that he should have said that he was “committed”, as that Westminster Hall debate took place after the publication of the Bill, whereas in a “File on 4” programme on care homes in September, Alan Urry reported that the Parliamentary Under-Secretary had

“agreed to look again at the need for an independent complaints body for families worried about the care of their loved ones, as he prepares to put in place a new regulatory regime due in 2009.”

Presumably, that regulatory regime is the Bill itself.

When interviewed by Mr. Urry, the Under-Secretary did not seek to disabuse him of that notion, instead saying that

“looking at whether there ought to be a right of appeal if you’re not satisfied with the way an individual provider has dealt with your complaint or some sort of independent element in the system of considering complaints...is something that we will have to consider going forward.”

The question remains: on the back of that commitment from the Under-Secretary, if the Government are serious about tackling the issue why is there nothing in the Bill? While in-house complaints avenues may work for large organisations such as hospitals, social care providers are often too small for an in-house complaints procedure to work. That was borne out by many of the examples that we have heard from hon. Members. We know from our constituency casework the strain that many regulatory regimes—and thus complaints handling by definition—put on smaller homes. None of us would wish to see a reduction in the capacity of such homes or of the service they provide in our constituencies.

Issues relating to complaints by self-funders in care homes are clearly under consideration, but there has not yet been any assessment of, or consultation on, the various options available. Furthermore, an effective complaints system at local and national level will feed into better regulation, both in the general guidelines and in the capacity to provide early warning of specific interventions. This is a well thought- through and constructive set of amendments and new clauses, which will give effect to something that, it is broadly accepted, must be looked at urgently. I am relying very much on the expectation that the explicit, on-the-record commitment of the Under-Secretary would lead to something appearing in the Bill. That is why I was anxious to have this debate on the complaints procedure.

May I ask the Minister what additional funding is the ombudsman likely to require and what have the  Treasury offered? What length of time does “short-term” refer to in the ombudsman’s evidence? What is the forecast increase in her work load? What are the differences between the Healthcare Commission’s investigation and the ombudsman’s investigation, which is limited to maladministration or service failure? How will the Healthcare Commission be wound up and how will it hand over its complaints function to the CQC? Will the Minister outline how the new complaints system will feed into an effective alerts system for the CQC, regarding both broad issues in the sector and problems with specific providers? What are the Government doing about two-tier complaints for social care funders?

Unless we persuade the Under-Secretary to accept the amendment there is a danger that he will renege on his promise to provide solutions in the Bill. Those pertinent arguments go to the heart of a number of issues that Members from across the House have raised, so I hope that the amendments and the new clauses will find favour with the Minister. They were tabled in a genuine attempt to improve the Bill.

Photo of Kelvin Hopkins

Kelvin Hopkins (Luton North, Labour)

I hope not to speak for very long as it is late, but I must sound a note of concern about patient complaints. A number of my hon. Friends, not necessarily members of the Committee, are concerned about changes in patient representation and procedures for patients making complaints in recent years. Those concerns remain, and I may talk about them later in Committee proceedings.

I am a member of the Public Administration Committee and the ombudsman reports to us on a regular basis. She does a first-class job. The ombudsman’s role is a part of government and our constitution that works really well. The quality of the reports that come back to our constituents are first class and better than those produced by most other institutions. We would not want to see that service diminished or weakened as a result of the ombudsman being overburdened or underfunded. I hope that my hon. Friend the Minister will take note of these concerns, which are shared by other Labour Members.

Photo of Sandra Gidley

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I will make just a few brief points, as we have heard a fairly detailed explanation of the provisions. Some pertinent questions have been posed to which I, too, should like to hear the answers. I share the concerns of the hon. Member for Eddisbury, as it is vital that we know what assessment has been made of the extra work load on the ombudsman. I also share the concerns of the hon. Member for Luton, North. We would not want to see a diminution in the quality of service provided by the ombudsman. An overriding concern is that if a complaints procedure is connected with the regulator, that will be an in-house and reactive arrangement. If there is a stream of related complaints, that needs to be flagged up quite early in the process.

I am concerned that however robust the mechanism that is put in place by the Government to feed back the ombudsman’s concerns, it will not be as efficient and responsive as an in-house process. The constant development that stems from the fact that the commission can deal with complaints should not be dismissed lightly in the overall picture of improving health care for our constituents.

Photo of Brian Jenkins

Brian Jenkins (Tamworth, Labour)

I want to ask the Minister whether he shares my concerns about this area. We constantly say that we do not want to get involved with private purchasers of health care. If one of my constituents goes to a shop and buys a good that is not of merchandisable quality, they can contact trading standards, which will intervene on their behalf and ensure that they get something that is fit for purpose. Why, at the end of their life, when they are in their most vulnerable position, can they not contact a publicly funded official who will intervene on their behalf? I know that it is a difficult area to get into, but I do not think that we should run away from the problem. A lot of these problems can be solved by early intervention between the consumer and the provider, without having to get embroiled in obtaining lawyers and going through a long drawn-out process. If the Minister could explain why that is the case, I would be grateful.

Photo of Ben Bradshaw

Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

May I begin with the point made by my hon. Friend the Member for Tamworth? There would be nothing to stop a self-funder in social care making a complaint to the Care Quality Commission if the registration requirements of the independent care home where they are resident are not being met. The Care Quality Commission could investigate that complain. What we are talking about is the investigatory role of the Care Quality Commission in taking on specific complaints.

On the point made by the hon. Member for Romsey, there is nothing to stop the Care Quality Commission analysing a pattern of complaints or having access to complaints so that it can detect patterns. It will be very important that the ombudsman works very closely with the Care Quality Commission if he or she identifies a pattern of complaints that is worthy of closer inspection and investigation. The dividing line that we are drawing is between a responsibility for ensuring quality and one for detecting patterns that might indicate that something more serious is going on. That would come under the remit of the Care Quality Commission. It will have to take on the role, which, as we have discussed, has been burdensome for the existing Healthcare Commission, of being the second-tier investigator for complaints.

I do not know if all hon. Members have had the chance to read the submission from Ann Abraham, the health care ombudsman. I am grateful to the hon. Member for Eddisbury for drawing attention to it, because Ann Abraham strongly supports what we are trying to do in this area. She thinks that it is very important that there is coherent coverage of both health and social care; effective handling at local level; a major cultural shift in the NHS from a defensive application of process to learning from complaints and a will to resolve them; and a simplified two-stage process. Both she and the Healthcare Commission have made it clear that they do not think that complaints handling is an appropriate role for any regulator.

Ann Abraham also made it clear that she has plans to ensure that her office is prepared to handle any increase, from April 2009. She recently restructured her office and is confident that it will be able to meet the forecast increases in any workload, and provide an efficient and effective response to demand. I do not  have the exact figures to hand, but I shall write to the hon. Member for Eddisbury with them. I stress again that although it will not be the role of the Care Quality Commission to intervene in individual cases, it will take account of concerns, complaints and allegations when determining whether services in the independent and public sectors are provided safely and are of appropriate quality.

On self-funders in the health care or local authority systems, we are still actively considering options available to them. The Under-Secretary of State for Health was right about this. We have only just finished the consultation on the complaints system and the Government will publish their response shortly. However, before addressing future changes, or new avenues available to self-funders, I should repeat what I have said to colleagues before, which is that self-funders can, of course, take their custom elsewhere. They can choose civil remedies through the courts and, as I just mentioned to my hon. Friend the Member for Tamworth, they can complain to the PCTs or local authorities, from whom the provider is contracted, about their concerns, if they think that it has failed in its registration duties. I hope that, given those assurances, the hon. Member for Eddisbury is able to withdraw his amendment.

4:30 pm
Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I think the Minister understands the point that we are driving at. He indicated the seriousness with which he has listened to our comments. It is clear, therefore, that what the Under-Secretary of State was saying will not be realised in this Bill, which is very regrettable. I am sorry that Government timetabling has not enabled that to happen, because it would have been wholly appropriate to make it coincide

I am concerned about self-funders, although I accept that other avenues are available. However, those avenues are available not so much because of the difference between being publicly or self-funded, but because of the type of remedy available and the sort of expertise and concerns applicable to a likely complaint. There will be no difference in the quality of care, or the vulnerability and circumstances of patients, whether in a health care or residential social care setting, between those who are publicly and privately funded. The same set of human circumstances will apply.

The fact that there are potentially two different outcomes or avenues causes a lot of us deep concern. We could end up with an unintended consequence—in this case it might be intended—whereby we have a two-tier system. I am not talking about ability to pay, because clearly from that point of view it is a two-tier system—that is what determines the cut-off point between funding social care through local taxation and means-tested benefits. In effect, if a person has available assets, they must use them first. The outcome is a two-tier system for people with a similar condition. We have an issue with that from a humanitarian point of view.

Photo of Angela Browning

Angela Browning (Deputy Chairman, The Conservative Party; Tiverton and Honiton, Conservative)

I agree. It often happens in a residential care setting that we have both sets of people—self-funders and those funded by social  services. When we discussed a previous amendment, I mentioned the scenario, which is not uncommon, of somebody who requires nursing care, but who social services fund at the residential rate in a private home. People who suffer the same problems can be treated unequally, and that is a matter of great concern.

Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

My hon. Friend puts her finger on an instinctive concern that is probably shared across the Committee. We will try to grapple our way towards a solution.

It is important to recognise that the care complaints procedure and potential remedies available to cared-for people—be that on a health basis or a social care basis—need to be based on their care concerns, not on their financial circumstances. That is the underlying sense of this. In the absence of the Government having picked up on a number of the proposals on trying to incorporate the rights-based approach—not least those made by the hon. Member for Luton, North—we have not even got as our default position the fact that a human being also has certain rights that carry through irrespective of their financial circumstances at the start.

Inevitably, those who have money, if they live long enough and have those care needs for long enough, will over time get down to the threshold and suddenly go from private to public. If they are in the same setting, their complaints procedure will suddenly move from a set of private avenues to a set of public avenues under the arrangements. There is therefore a legitimate point, which is causing concern.

Photo of Kelvin Hopkins

Kelvin Hopkins (Luton North, Labour)

A number of us have for a long time supported the concept of free long-term residential care, as recommended by the royal commission. The Government have not accepted it. I do not think that the Opposition have accepted it either. I have tabled two early-day motions, and hope at some point to persuade the Government to do the good, honest thing, because then all these problems would disappear.

Photo of Jimmy Hood

Jimmy Hood (Lanark and Hamilton East, Labour)

The hon. Member for Eddisbury will not reply to that, as it has nothing to do with the amendment.

Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I am grateful to the hon. Gentleman. I am sure that we all noted what he said, and we certainly know his long-standing commitment in this area.

It may be unhelpful at this point to seek to divide the Committee. I am tempted to do so, because it would be an earnest expression of the Committee’s intent. The trouble is that it may put the matter into a more political sphere. If anyone outside is taking any notice of what we are doing, I think that this is the sort of issue which people would regard as being of such key interest that we need to rise above party politics or Government-bashing, or whatever it is.

I really do want to give the Government and this Minister the benefit of the doubt. I hope, however, that the earnest and sincere representations that have been made are now going to be taken away by him and his officials and thought through extremely carefully, because we have a right to expect something  constructive to appear on Report. It would be helpful if it were in the Government’s name, but we will also pursue this. To seek to divide the Committee would inevitably put those on the Government Benches in the embarrassing position of having to decide whether they support their sentiment or their party. Rather than forcing the issue in that way, I hope that I have set the context that makes my withdrawal of the amendment possible. I have very high expectations that the Minister will satisfy me and others at a later date. I beg leave to ask to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Ben Bradshaw

Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

I beg to move amendment No. 153, in schedule 5, page 129, line 30, at end insert—

‘Public Audit (Wales) Act 2004 (c. 23)

In section 62 of the Public Audit (Wales) Act 2004 (co-operation), for paragraph (c) substitute—

“(c) the Care Quality Commission,”.

In section 64 of the Public Audit (Wales) Act 2004 (provision of information by CHAI)—

(a) in subsection (1), for “The Commission for Healthcare Audit and Inspection” substitute “The Care Quality Commission”,

(b) in subsection (2), for the words from “section 136” to the end substitute “section 70 of the Health and Social Care Act 2008 (disclosure of confidential personal information: offence).”, and

(c) for subsection (3) substitute—

“(3) In this section—

“English NHS body” has the meaning given by subsection (1) of section 90 of that Act; and

“cross-border SHA” means a cross-border Special Health Authority as defined by that subsection.”’.

Photo of Jimmy Hood

Jimmy Hood (Lanark and Hamilton East, Labour)

With this it will be convenient to discuss the following: Government amendments Nos. 154 and 155.

Government new clause 14—Provision of information by Auditor General for Wales.

Photo of Ben Bradshaw

Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

The amendment, further consequential amendments and new clause relate to Wales.

Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I think it is only right to say formally that we note the amendments, which are a result of the discussions that have been confirmed to have been concluded with those who are responsible for devising the way forward for Welsh Ministers under the provisions of the Bill.

In passing, I note that when we last voted on Government amendments—no doubt, I could have it confirmed by a nod—only those up to amendment No. 192 were made. I suspect that amendments Nos. 193 and 194 come later under schedule 15. That makes more sense in respect of what we are dealing with. On that basis, we are not raising any objections.

Amendment agreed to.

Amendment made: No. 154, in schedule 5, page 129, line 30, at end insert—

‘Health Act 2006 (c. 28)

In section 61 of the Health Act 2006 (Commission to exercise Welsh Ministers’ appointment functions), omit “the Commission for Healthcare Audit and Inspection or”.

In Schedule 5 to the Health Act 2006 (list of statutory bodies referred to in section 58(3))—

(a) omit the entry for the Commission for Healthcare Audit and Inspection and the entry for the Commission for Social Care Inspection, and

(b) at the appropriate place insert—

“The Care Quality Commission.”’.—[Mr. Bradshaw.]

Schedule 5, as amended, agreed to.