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

I beg to move amendment 40, in clause 33, page 32, line 32, leave out ‘adult’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss the following: amendment 41, in schedule 5, page 53, line 12, leave out ‘adult’.

Amendment 138, in schedule 5, page 53, line 13, leave out ‘adult’.

Amendment 42, in schedule 5, page 53, line 14, leave out from ‘interpretation’ to second ‘social’ and insert ‘social care provider” and’.

Amendment 43, in schedule 5, page 53, line 16, leave out ‘adult’.

Amendment 63, in schedule 5, page 53, line 17, leave out from ‘2008’ to end of line 18.

Amendment 44, in schedule 5, page 53, line 19, leave out ‘adult’.

Amendment 45, in schedule 5, page 53, line 21, leave out ‘adult’.

Amendment 46, in schedule 5, page 53, line 25, leave out ‘adult’.

Amendment 47, in schedule 5, page 53, line 30, leave out ‘adult’.

Amendment 48, in schedule 5, page 53, line 32, leave out ‘adult’.

Amendment 49, in schedule 5, page 54, line 1, leave out ‘adult’.

Amendment 50, in schedule 5, page 54, line 2, leave out ‘adult’.

Amendment 51, in schedule 5, page 54, line 17, leave out ‘adult’.

Amendment 52, in schedule 5, page 54, line 32, leave out ‘adult’.

Amendment 53, in schedule 5, page 56, line 8, leave out ‘adult’.

Amendment 54, in schedule 5, page 56, line 35, leave out ‘adult’.

Amendment 55, in schedule 5, page 58, line 25, leave out ‘adult’.

Amendment 56, in schedule 5, page 58, line 44, leave out ‘adult’.

Amendment 58, in schedule 5, page 59, line 18, leave out ‘adult’.

Amendment 59, in schedule 5, page 59, line 28, leave out ‘adult’.

Amendment 60, in schedule 5, page 59, line 42, leave out ‘adult’.

Amendment 61, in schedule 5, page 59, line 47, leave out ‘adult’.

Amendment 62, in title, line 5, leave out ‘adult’.

Hon. Members:

And amendment 57.

Robert Key (Salisbury, Conservative)

And amendment 57, in schedule 5, page 59, line 9, leave out ‘adult’.

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

All I would say, Mr. Key, is that if you were testing whether we were awake and paying attention to your every utterance, I am glad to say we have all passed the test admirably. One could say that you left out 57 because it is all the varieties. At this stage, any humour is better than no humour. Those of us who come from the north-west are very proud of the fact that the 57 varieties come from the Wigan factory, which one passes on the M6.

This tranche of amendments—a good fistful of amendments—will be deceptively short in its proposition. It is simply to ask the Minister why the complaints avenue is limited to adult social care, and what is the equivalent available to children? That is something that we spent a huge amount of time on in the Health and Social Care Bill, which was roundly rejected at the time by one of the Minister’s predecessors. However, it would be a shame to let the Minister off the hook too quickly and easily. Therefore, with your permission, Mr. Key, anticipating that you might wish to suggest that we do not delay on a clause stand part debate, I might set the context in which all the amendments can sit.

Robert Key (Salisbury, Conservative)

I would be very content with that.

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

I am happy to have your assent, Mr. Key. I will touch on some of the general points, which will enable us to avoid that lengthy stand part debate, and then trot through the amendments.

We welcome the measure, although there is little excuse for the two years that it has taken since the former Health Minister, the hon. Member for Bury, South (Mr. Lewis) first promised it in 2007. As we have so often pointed out, it could easily have been part of the Health and Social Care Act 2008. During the passage of that Act, the right hon. Member for Exeter (Mr. Bradshaw) denied our amendments to it, saying

“self-funders can, of course, take their custom elsewhere. They can choose civil remedies through the courts”.——[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 348.]

Apparently the Government have no qualms about people frail enough to be in nursing care moving every two weeks, with occasional trips to the witness box. We were quite angry with the Government for denying us what was a constructive approach at that time, so we are glad that the Government have come forward with this measure, albeit in a slightly face-saving way. Common sense seems to have prevailed at last, and I am glad that our arguments have won though.

Paragraph 303 of the explanatory notes states:

“The Government expects that in the majority of cases the complainant would raise the complaint with the provider first”?

On what basis did the Government make that assumption? We are clearly legislating for complaints that are unsuitable to be made to the provider, or that the provider has failed to deal with, so that will not impact the baseline.

It is a shame that we are debating such matter before the publication of the Green Paper. I dare say that all members of the Committee witnessed what I would call a sleight of hand from the Minister today—not this Minister, I hasten to add, but his colleague, the Minister of State, Department of Health, the hon. Member for Corby (Phil Hope). We have been calling for the Green Paper on adult social care for many months and the Government have been promising it for many months—the former Health Minister, the hon. Member for Bury, South (Mr. Lewis) promised a new settlement for some years. We were told that the Green Paper would definitely be out by the spring, but by every test in the book, spring finishes on either 21 June or 25 June. We had anticipated that it might be published on 29 June. We understood that the Government might not want to affect the time that the Committee was sitting, but now we are told that it will be July, so there is yet more slippage.

Many people are extremely anxious to see what this Green Paper will contain because it will set the framework for this debate, which is vital. It would have been helpful to have had the Green Paper before considering the Bill, because it may—I think that it should—have major ramifications for the shape of social care in this country.

Lord Darzi told peers in another place that the Green Paper would be published in early 2009,but as I have just explained, it now looks like July. I would also caution the Minister on the rhetoric that seems to have been used in the regulatory impact assessment. The summary states that this will create a level playing field between privately and publicly funded users. That is a vital area, which again was discussed at length during the debates on the Health and Social Care Bill. The hon. Member for Hendon (Mr. Dismore), who chairs the Joint Committee on Human Rights, has made a large contribution to the debate on the distinction between privately and publicly funded users being diminished to nothing, so that there are equal rights. As all of us know, it is invidious that two patients can be in neighbouring beds, one of whom is completely publicly funded while the other is privately funded. That causes anxiety and issues—often for the relatives as much as for the patients, but also because of the human rights issues and who can enforce the legislation.

Paragraph 24 of the regulatory impact assessment points out that

“the policy does not include private health care.”

How have the Government ensured that by opening the door to private funders in social care, they do not open the door to private funders in health care as well? I do not for a second underestimate the complexities. We need to keep the debate on sensible grounds. We started the scrutiny of the Bill discussing the NHS constitution, which is totally focused on public provision and the use of public money for NHS services. When looking at this kind of complaints procedure we absolutely butt up against the difficulty of a mixed economy of health care, which, whatever its merits or demerits, exists. We therefore need to make sure that to the best of our ability is, as we push through any new legislation in this area, there is real acknowledgement of the need to seek and find equity in the process.

Moreover, I remind the Committee that although the Government have closed the loophole by which publicly funded individuals in private care were not covered by the Human Rights Act 1998—I alluded to that a second ago—the individuals we are discussing today, private funders of private care, are still not covered by the Act. I am not suggesting that they should be, because of the way the Act works in relation to public bodies, but it leaves an area uncovered in terms of the potential for rights and enforcement. I dare say that all of us at least need to be cognisant of that, even if this is not the right vehicle to try and address that.

The RIA says that social care services, unlike health services, have developed under a funding model under which a sizeable proportion of services pay their own way—some 300,000, or 35 per cent., according to the RIA. I asked the Minister whether the passive really is a suitable voice for a system that the Government have failed to reform, despite many promises to date. I also question an odd line in paragraph 30 of the RIA, which states:

“we do not foresee the need to enter into a formal public consultation because the policy is a ministerial commitment made in Parliament.”

I hope that the Minister will be able to ensure that that position is put in context.

At this stage, the amendments all go to the same point—why do the provisions cover only adult services, and not children’s care services? Why is the proposal limited? When will the Green Paper, which will have ramifications, be published? July is the nearest we can get to at the moment. Will the Minister inform the Committee of the basis for the Government’s estimate of numbers? What ramifications may this have for private health care funders and for all those still not covered by the Human Rights Act? Do the Government need to consult on statements made in Parliament and will the Minister credit the Opposition with holding the Government’s feet to the fire? It would be rather nice to have that acknowledgement.

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

I am not sure whether my feet feel held to the fire, or I am just left cold, but I have rarely heard the words in an RIA described as “rhetoric”. I suspect that Martin Luther King will not have to feel challenged about that. In answer to the question of how long the wait will be for the Green Paper—not long. On private care, it is not our aim to provide a new system, it is about NHS care and recognising that sometimes it can be provided by private sector organisations. However, where public money is involved there should be appropriate safeguards for those using the service.

I can understand the thinking behind the amendments, but I would like to explain why I do not believe that they are actually necessary. One of our main objectives in creating the new scheme is to give people who arrange or fund their own adult social care services, access to independent consideration of their complaints comparable to that enjoyed by people with access to local authority adult health services complaints procedures. We have designed the new scheme so that its scope is limited to service providers who actually carry out regulated activity within the meaning of part 1 of the Health and Social Care Act 2008—in other words, adult health services. There are good reasons for that. There is not only a different system for complaints about children’s social care services, but a different system of regulation under separate legislation. I therefore believe that it makes sense to keep adults’ and children’s complaints processes separate. For many years there have been separate arrangements for children’s complaints about social care services under the Children Act 1989. These arrangements are different in many ways from adult procedures as they reflect the specific needs of children. I hope that deals with that point.

In terms of the need to consult, the policy has already been discussed during the passage of the 2008 Act and is the subject of ministerial commitment. In addition, we believe this is an uncontroversial measure that is widely welcomed and any alternative approaches are not realistic. We prefer a reference group approach, which can focus on the practicalities of implementation rather than the issue of whether or not the policy should be carried through. We seek engagement with the stakeholders regarding implementation. We need their advice and input on the way we engage, but the issue is clear. I assume there will be broad support for the way in which we are giving these additional rights; indeed, the support is so broad that the Conservative  Opposition appear to be claiming credit for it. I do not mind where the credit is taken, provided this Government continue to deliver for people.

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

As long as the Minister is not trying to put a time on that, we can all have our own thoughts as to how long that may be. As he referred to Martin Luther King, we can all have our dreams.

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

In your dreams.

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

The Minister has sought to satisfy us why this measure has been limited to adult social care. There is a genuine anxiety that, for whatever reasons and whatever the merits and demerits, children’s social care and adult social care are effectively dealt with by two different arms of Government. As with all such issues, there is both a desire and an anxiety on the part of the Government and those who scrutinise it, that this above all is an area that should be joined up. An absence of joined-up thinking in relation to children is always of grave concern, particularly when so many social services are produced from the same source within the local authorities with whom we as hon. Members have to deal. That is notwithstanding the fact that this has been put under the banner of children’s services and that the onset shortly of children’s trusts will be key. Although I cannot see an immediate solution to breaking down that barrier in the way that legislation is approached because of departmental responsibilities, there is a need to recognise that the issue of complaints, particularly with regard to children, is effectively the same as in the courts. There one has an advocate appointed by the court or some kind of friend to enable an approach to be made. I hope the Government will give that active consideration.

Having listened to the Minister I will not press these amendments to a vote, but it is important to recognise the issue. In seeking to introduce this series of linked amendments it took me a long time to find amendment 62 in the documentation as it is right at the back and had just been linked with this subject. It merited discussion and I hope some more thinking will take place. I beg to ask leave to withdraw the amendment.