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

I have a few questions concerning the health service commissioner. What assessment have the Government made of any increase in work load and how have they resourced that? I discovered during proceedings on the Health and Social Care Act 2008 that although the Government are able to adjust the responsibilities of the ombudsman through legislation such as this, the resource of the ombudsman is not delivered through the money motion of the Bill but must be voted directly by Parliament.

Can the Minister confirm that the ombudsman will not be limited to maladministration in this area? When one talks to the ombudsman, one finds that they do not believe that they are. It is important, however, given that most MPs who deploy the ombudsman on behalf of their constituents tend to think that the ombudsman’s remit is limited to maladministration. We must be clear about the expectation here, given that there is no alternative appeals process.

The Under-Secretary of State for Health, the hon. Member for Brentford and Isleworth (Ann Keen), told me earlier this month, in response to a written parliamentary question:

“The scope and remit of the parliamentary and health service ombudsman to consider complaints has not been changed by the abolition of the Healthcare Commission.”—[Official Report, 9 June 2009; Vol. 493, c. 839W.]

Will the patient in receipt of a direct payment be able to complain about anything in the care package—the commissioning and providing, or overpayment and underpayment, for example—rather than simply the administration of that package?

Thirdly, what is the hierarchy of complaints? Last year saw the removal of the complaints function from the Healthcare Commission, now the Care Quality Commission, which removed people’s ability to push complaints about things other than maladministration  beyond their own trust. In the case of direct payments, if the patient is the commissioner, do they lose the right to complain through the PCT? Is their only recourse to complain to themselves, and to the ombudsman? I hope the Minister can give us more clarity about how this will work.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

The clause expands the jurisdiction of the Parliamentary and Health Service Ombudsman as set out in the Health Service Commissioners Act 1993. It allows the ombudsman to investigate people providing services funded by direct payments for health care, but who are not health service bodies. In particular, it allows the ombudsman to investigate matters relating to commercial or other contractual transactions arising from arrangements for the provision of direct payment services. So this will not just be about maladministration; it will be somewhat wider than that, so that we can have a proper investigation of problems that arise, which may well result from legitimate disputes that come out of the provision of direct budgets to individuals.

By expanding the ombudsman’s scope in this way, we can ensure that people who receive these services have a similar degree of protection to other NHS patients. It is not identical—for example, the NHS complaints system will not apply—but this is consistent with the principle that services procured by direct payments remain NHS services. So where a third party has provided various levels of service, the NHS ombudsman would be able to look at how that third party provided those services. The ombudsman will have discretion about which complaints she wishes to investigate and we expect that she will continue to operate in a sensible and proportionate manner. Neither we nor the ombudsman expect these changes to add significantly to her work load and the ombudsman is supportive of our approach.

We are not aware of any significant resource implications, to deal with the point raised by the hon. Member for Eddisbury, but should that resource implication arise, we will listen to representations from the ombudsman to ensure that these things can be properly looked into in a proportionate and appropriate way. The resource issue is not a major one and we will look at how this develops in the future. As I have indicated, it is not just maladministration and we want to ensure that the health service ombudsman, in particular, will be able to look at matters more broadly than merely disputes between a PCT and someone who has a budget—for example, to look at how the budget was deployed by the individual. Reports from the ombudsman can help us in the longer term to evaluate how these budgets are being dealt with.

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

The last point is important, because it might establish patterns of behaviour as a result of the way things are being done, which, without LINks or, indeed the former community health councils being specifically involved, could be a very valuable way of assessing the collective experience. It will be very important to those who have a concern about the use of the direct payments—people in vulnerable situations may be worried about taking a complaint to the very body from which they need continuing support. There is always an anxiety about using a complaints process which is effectively like a parked arbitration process without affecting their relationship with the continuing support that they need. This is a very important area in terms of trust and confidence and why the independence is valued.

The Minister has helpfully identified the expectations, particularly as regards resources, and that confirms what I have heard myself from the ombudsman, but the issue will be whether there is an ability to access the ombudsman, given that ombudsmen have a full panoply of recommendations open to them, but, as we all know, no teeth. The best they can do is issue another letter suggesting that the recommendation has not been carried out, as we know from the Equitable Life debacle. If this is to work properly, in the interests of patients, it is important that the ombudsman be given the full remit. I am satisfied with the reply so far.