Schedule 5
Health Bill [Lords]
6:30 pm
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
New section 34A includes the definitions of adult social care and adult social care provider for the purposes of the new scheme set out in new section 34B. The meaning of adult social care is the same as that in section 9 of the 2008 Act. The amendment would remove subsections (4) and (5) of new section 34A, which provides that action taken on behalf of the provider should be treated as action taken by that provider. Not referring to the ombudsman being able to investigate action taken on a provider’s behalf would introduce uncertainty about the coverage of the scheme, and I am glad to have the opportunity to set out why that would not be desirable.
Our aim is to ensure that complaints about social care that is provided under any arrangements where the provider has delegated a service remain within the ombudsman’s remit. We want the ombudsman to have a fair degree of discretion. The provisions cover action taken by an employee, by a person with whom the service provider was contracted to provide the service, as well as where the service is provided by a less formal arrangement with another person. I do not believe that anyone would think it right for a service provider to evade investigation of poor practice just because someone acting on their behalf carried out the service for them and was directly responsible for the actions.
Suppose a care home provider contracts with a person for that person to come into the home and provide a particular service, which is then the subject of a complaint. Under these provisions, the care home provider is still responsible for what happens within that care home and they should rightly be subject to an investigation if there is a complaint to the ombudsman. Without these provisions, it would be easy for such a provider to escape investigation by arguing that the service that had been the subject of the complaint was carried out by someone else on their behalf. That would be wrong and therefore I trust that the hon. Gentleman will feel able to withdraw the amendment.
The hon. Gentleman rightly raised the issue of those who trade under different names and he asked to what extent we can pierce that corporate veil. It is our intention that the ombudsman would be able to examine all the circumstances in a case and would have broad discretion in the way that that would be done. It would be the facts that would be investigated rather than a corporate individual. If the ownership of a particular care home was to change and was passed among a number of organisations, each of which was a separate corporate entity but owned by linked individuals, the ombudsman would still be able to look at the facts and the circumstances before taking a view on the matter.