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

I beg to move amendment 69, in schedule 5, page 55, line 26, at end insert—

‘(4) Where the Local Commissioner chooses not to disapply, he must write to the complainant giving reasons for his decision.’.

It is a great pleasure to resume under your chairmanship, Mr. Key, and to welcome the Minister back to his place —just!

As we discussed on Tuesday, the ombudsman has the power to waive the form and date limits on the complaint, if he wishes. I can see no obligation in the Bill for him to give reasons for choosing not to take forward a complaint. As the complaints procedure is intended to be taken up by the ombudsman—whose usual approach is primarily focused on maladministration—it is fair that he should give reasons where he “chooses not to disapply” the rules on form and content. Our amendment would place such a responsibility on the ombudsman, which would be good practice, in any case. I hope the Minister will confirm that when complaints are not taken forward, complainants will be given the reasons why.

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

The powers in the Bill to disapply the specified requirements mirror those in the legislation governing complaints about local authority social services. Those arrangements work well. The ombudsman operates a flexible approach, often using his discretionary powers for the benefit of the complainant. Every complaint involves a dialogue between the ombudsman and the complainant at an early stage. It would be apparent very early, through this process of dialogue, whether disapplying the specified requirements was necessary. As that dialogue already occurs, an additional requirement to explain a decision not to disapply in writing seems  unnecessary. The aim and practice is that by the time the dialogue has been completed, the complainant is aware of why a decision has been made. That is how things have operated up to now and we want that process to continue to apply.

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

The exchange has been helpful. No doubt the ombudsman will read this in due course and will have some sense of—as the Americans put it—moral suasion, which will help to make sure that reasons are given. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 70, in schedule 5, page 56, leave out line 14 and insert—

‘(2) The Local Commissioner may choose to conduct an investigation under this part in private.’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss amendment 105, in schedule 5, page 57, line 15, at end insert—

‘(8A) A Local Commissioner may apply to the High Court in order that a judge may issue any order in regard to evidence with the powers of compulsion available to such judicial authority which would not otherwise be available to the Local Commissioner’.

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

The Bill states:

That has resonances of yesterday’s motion on the Floor of the House. Will the Minister explain to the Committee how far that extends? What does “this Part” refer to? Is it just the new clauses before us? Surely the ombudsman should be given the freedom to decide whether to conduct investigations in public or private. Is he not able to make that decision? In the week that the Government are feeling a touch of the heat about matters such as this, I hope they will regard the ombudsman as having discretion to make that decision more freely than is apparent in the Bill.

The commissioner has only civil powers of compulsion, but amendment 105 seeks to enable him to obtain, through a judge, the powers of compulsion used in criminal actions, that is not just over people, but over documents, too. Dredging into my past practice as an international commercial litigator and arbitrator, I remember that it was enormously helpful in civil cases to be able to apply to a judge to seize documents under an Anton Piller order, or a subpoena duces tecum. Those concepts will be familiar to the Minister. At present, it appears that the ombudsman has no powers to obtain the sort of evidence that might be required to ensure that this as a complaints procedure, rather than as a referred, typical ombudsman’s procedure, will give the necessary satisfaction. Without the opportunity for compulsion, the appeals process and the complaints process will not carry with them the confidence that all the evidence necessary in order to ensure that a complaint is properly heard and adjudicated upon is available, and that the process is sufficiently robust to be worthwhile, rather than simply avoiding putting a whole separate complaints process in place and parking it with the ombudsman. This is a bit of a test as to how truthfully  the scheme is intended to operate, without the powers of compulsion with which the Minister, in terms of legal concepts, will be familiar— this balance between the normal powers of compulsion within the criminal court where, of course, the burden of proof is of a much higher standard than in the civil courts. This seems to relate to a more voluntary, civil-type arrangement, and even in the civil courts, rather than in the case of the ombudsman, as referred to here, there is a danger that, without the powers of compulsion that I would expect to have been able to use in relation to a civil action, the ombudsman’s role and remit could be unnecessarily severely limited.

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

The current local authority scheme operated by the ombudsman under part 3 of the Local Government Act 1974 contains exactly the same provision for investigations to be conducted in private. It is generally also the case with other public service ombudsmen’s investigations.

One of our aims in these provisions is to mirror, where appropriate, the procedures that apply to the local authority scheme. Of course, if there are any good reasons for a different approach, we will listen to them. In the case of investigations being conducted in private, however, I do not think there should be any difference between the two schemes.

There are also sound arguments in favour of investigations being conducted privately in relation to these matters. For example, the matters complained about may be to do with health or care and may be of a confidential or personal nature. The effectiveness of the scheme is, to a large extent, dependent on how well it enables the ombudsman to get to the truth of the matter. This means that procedures that encourage the giving of accurate evidence are important. If there was a requirement to hold investigations in public, that might hinder openness on the part of some witnesses.

The ombudsman’s procedures are not like a court of law. They are meant to be flexible and effective, capable of being carried out speedily, and they are designed to bring out the salient features as efficiently as possible, to allow the ombudsman to reach a conclusion as reasonably expeditiously as possible. While it is possible for witnesses to have legal representation, the ombudsman aims to regulate the investigation and to ensure that it does not become costly, bureaucratic, or unduly cumbersome. I fear, however, that is exactly what would happen if investigations were to be held publicly. I therefore believe that it is entirely appropriate that we should keep the ombudsman’s operation in a particular area without trying to apply to it a whole list of legalistic concepts that may have a real relevance in a court of law, but which would undermine the very nature of the ombudsman’s role.

Amendment 105 seeks to allow the ombudsman to apply to the High Court for a judge to use the powers of the court in relation to evidence. There are certain powers here anyway for the ombudsman. In the proposed new section 34G, the ombudsman has the same powers as the High Court to compel the attendance and examination of witnesses and production of documents. This means that anyone not complying with a reasonable request of an ombudsman may be in contempt of court and subject to the penalties associated with it.

If a person obstructs an investigation, or is guilty of an act or omission in relation to an investigation, which could constitute contempt of court in proceedings in the High Court, the ombudsman may certify this as an offence to the High Court. The High Court then would deal with the person charged as though they had committed the same offence in relation to the High Court.

The hon. Member for Eddisbury proposes to make further remedies available to the ombudsman, which would enable him to take steps beyond those he is currently able to take. I am concerned that, if we start to extend significantly the powers of the ombudsman in this area alone, the real risk is that we import into it a whole series of legal concepts, which operate perfectly well in the courts, which are designed to protect those affected by the powers and remedies. However, in the context of the ombudsman’s investigation, it could become extremely legalistic, resulting in the ombudsman being judicially reviewed on all sorts of decisions before the High Court, as well as delaying things substantially, adding to the cost of the ombudsman, and failing to fulfil the whole basis of the speedy review and examination of issues that the ombudsman was intended to facilitate.

I recognise the good will and genuine intentions of the hon. Gentleman to enhance the powers of the ombudsman, the fear is that with those remedies and powers would come a significant examination of legal detail as well as importing legal procedures that would be unduly cumbersome. I hope that, having expressed those concerns, the hon. Gentleman will be able to withdraw his amendment.

John Horam (Orpington, Conservative)

I understand where the Minister is coming from on amendment 70. He seeks to mirror the original legislation because otherwise the process might become burdensome and difficult. He has already simplified the procedure for hearing complaints by cutting out one of the processes and we are now down to two, so the burdensome argument does not really apply.

I also wonder whether this is an issue that, in this day and age, would be helped, in some part, by being held in public. I have a recent personal experience of these procedures where a resident in Bromley took up with the ombudsman the behaviour of some of the chief executives of the Bromley hospitals trust—there have been several chief executives recently. He tried to obtain information about their procedures and the way they handled business. What happened in practice was a prolonged exchange of letters, which was very unsatisfactory. The complainant felt that every letter contained an element of misrepresentation or inaccuracy that he had to correct. It went backwards and forwards endlessly, becoming a prolonged procedure that other people eventually got involved in. Eventually, it was brought to an end by the ombudsman, who said, “This is my final decision and I will not take any more evidence.” In many ways, it would have been better if there had been a short hearing, where the applicant could have challenged some of the points made by the ombudsman and his representative. In fact, it might have been quicker in the end because there would have been a question and answer session, rather than repeatedly sending letters backwards and forwards. I take the point that my hon. Friend the Member for Eddisbury made about what happened on the Floor yesterday, and I wonder whether,  in this day and age, we need to move forward a bit and at least give the ombudsman the possibility of taking this course of action where he feels it may be appropriate.

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

Rather interestingly, I had expected to find myself being satisfied with the Minister’s answer on amendment 70 and dissatisfied with that on amendment 105. In fact, it has turned out to the contrary. The answer we had on amendment 105 has been helpful. It seeks to give the necessary strength to the process, but to the extent that powers are described in proposed new section 34G of the Local Government Act 1974, the Minister was able to highlight that there is the appropriate appeal in the contempt process of the High Court. This probably gives the power that we need behind these measures in order to make the compulsion process likely to take place in reality.

In relation to amendment 70, my hon. Friend the Member for Orpington made the point well in the example he gave. The Minister referred to the need to retain flexibility, but that is exactly what the amendment seeks to provide. New section 34F(2) states:

“Every investigation under this Part is to be conducted in private.”

I sought to suggest, as the amendment shows, that

“The Local Commissioner may choose to conduct an investigation under this part in private.”

There would therefore be a presumption. The point about flexibility is therefore better served by our amendment.

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

Let me clarify what we mean by “in private”. It is possible for the ombudsman to call both parties into the room and have a discussion between them, so that they can talk both to each other and to the ombudsman. In those circumstances it is still in a sense a private discussion. So the parties may, if the ombudsman were to choose to behave in that way, be brought into a room with the ombudsman. That is not the way the ombudsman system has worked up to now. The hon. Gentleman is suggesting that we should import into one area only of the ombudsman system an entirely different practice.

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

The Minister is right to make that distinction. The reason we are having this debate, even if this is effectively an accretion to the ombudsman’s traditional approach, is because the ombudsman would be used as the complaints process for a new area of activity. That is why this distinction needs to be made. The Minister’s comments are helpful in so far as they make it explicit that the intent here is more of an arbitration type of proceeding, as arbitrations are privately arranged. They park a dispute and the relationships between the parties can carry on; as against litigation where more or less everything comes to a general halt and there is a contentious situation in the court.

As long as it is clear to everybody that that is what we are heading into, it would be counter-productive to press this to a Division. Our exchange makes it clear what type of process we are dealing with, so I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 71, in schedule 5, page 56, line 30, at end insert—

‘FA Complaints: Emergency Action

(1) If, on receiving a complaint under section 34D, the Local Commissioner has immediate and urgent concerns, he may inform—

(a) the Care Quality Commission,

(b) the local authority,

(c) the Police,

(d) the Secretary of State.

(2) The Secretary of State may issue guidelines on circumstances of “immediate and urgent concern”. These may include—

(a) all forms of abuse,

(b) malnutrition,

(c) infection.’.

The amendment will take slightly longer than our canter through recent amendments. It probes what happens if the ombudsman receives a complaint that he deems serious enough for action to be taken immediately. We have termed these “immediate and urgent concerns” and generously allowed the Minister the liberty to set out what they might be in regulations. It empowers the ombudsman to inform any or all of the CQC, the local authorities, the police and the Secretary of State. The specifics on the face of the Bill relate to issues that, as we all know from our case work, have been particularly prevalent in the sector in the last 10 years, namely malnutrition, elder abuse and health care associated infections.

According to the advisory group on malnutrition, malnutrition is an under-recognised and under-treated problem. Evidence suggests that over one in 10 care homes do not have a nutrition screening policy in place and malnutrition has been found to affect one in three adults admitted to care homes and an even greater proportion of people resident in sheltered housing, even though NICE guidance published early in 2006 demands that people resident in care homes are screened when there is clinical concern.

Malnutrition in community settings is not being managed effectively. The case for encouraging care homes to identify and manage malnutrition is highlighted in the recent data from hospital episode statistics, which reveal that the number of people being admitted to hospital with a diagnosis of malnutrition has increased from 72,095 in 1997-98 to 148,946 in 2007-08—a rise of 107 per cent. over that period. This suggests that the nutritional care people receive in community settings such as care homes is deteriorating, meaning that a greater number of people require hospitalisation. The guidance will help address this situation by encouraging a focus on nutritional care by adult social care providers.

Furthermore, mortality from malnutrition is on the rise. The hospital episodes statistics data is reinforced by figures obtained through parliamentary questions, which reveal that 263 people died in care institutions, including care homes, in 2007 from malnutrition—a 9 per cent. increase over 1998 levels. The guidance our amendment proposes could help by stipulating that a death from malnutrition in an institution is an issue of immediate and urgent concern, requiring action by either the Care Quality Commission, the commissioning local authority, the police, or the Secretary of State. Rather than go further into the elder abuse issue, with  which Members throughout the House are terribly familiar—and I use the word “terribly” advisedly, as it has been a real shock to us all to find out just how much elder abuse there has been—I shall move on to health care associated infections. A good series of campaigns is highlighting elder abuse, and many of us are doing our best to focus on it and see improvements.

We are all aware of the Government’s performance on HCAIs in hospitals, which, it has been argued over many years, is not creditable. The latest Health Protection Agency figures show that the number of clostridium difficile cases went up by 6 per cent. in the last quarter, while the number of MRSA cases went up by 2 per cent.—although, extraordinarily, the new Health Secretary boasted that he was “proud” of the record on the day that those figures were released.

I fear that the figures expose the Government’s complacency and their failure to tackle that blight. Just two weeks ago, the National Audit Office said that almost a quarter of hospitals still do not have facilities to isolate patients with an infection to stop it spreading. Instead of taking real action, the Department and the Government have pursued measures such as the Prime Minister’s flawed deep-cleaning programme, which has turned out to be one of those deep embarrassments.

However, HCAIs are beginning to appear in community settings, particularly in care homes. We have figures up to only 2005, so those are still small, but they are rising significantly. Deaths from MRSA doubled from 0.02 per cent. to 0.04 per cent. of the care home population between 2001 and 2005. Deaths from C. diff more than trebled over the same period, from 0.03 per cent. to 0.11 per cent. Those numbers are more significant if we posit a care home population of 300,000 to 400,000 people.

Action on this is moving faster across the Atlantic. In fact, this month nursing homes in the eastern regions of Pennsylvania began reporting healthcare associated infections to the state’s Patient Safety Authority through the Pennsylvania patient safety reporting system. Legislation signed as long ago as July 2007 made that reporting mandatory.

What mechanisms will be put in place to enable the ombudsman to take or alert others to take swift action where necessary? If none, I hope that the Minister will accept our amendment. I also hope that he will explain how the Government are acting on health care associated infections, on elder abuse, obviously, and on malnutrition in the care sector, as those are clearly pertinent, powerful and distressing examples. We hope that the complaints procedure, which to some degree picks up on the power that was lost when community health councils were scrapped, because they had the ability to look across the system as well as down into individual complaints, will bring benefit to urgent and immediate policy action.

John Horam (Orpington, Conservative)

My experience is that the statistics for MRSA and C. difficile are very late. The current situation is usually nine months previous, which is one reason that we need to react quickly. I have constantly found that when looking at the situation, one is talking about figures that came out nine months ago. That really is unsatisfactory and I understand that there are reasons for it; it is not easy to pinpoint those things in accurate  and timely ways. None the less, when it is apparent that the situation in a hospital is sliding, we need to take urgent action.

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

I looked at this issue with some care, and was initially tempted to take the matter back and consider it for Report. The hon. Member for Eddisbury has put his case in a politically contentious way, and I certainly refute his suggestion that there is any complacency about issues of abuse, malnutrition or infection. Those are all serious matters that the Government, certainly, take seriously; institutions like the Care Quality Commission were set up to deal with them. It is precisely because we take those issues seriously that we took legislation through to set up an organisation like the CQC.

We accept entirely that action needs to be taken to deal with incidents of abuse, malnutrition and infection, which occur from time to time and must be tackled without delay where discovered. Under new section 34P, the ombudsman may provide information to the Care Quality Commission if that information appears to be relevant to the CQC’s responsibilities. He can do so as soon as he receives a complaint. He does not have to wait or investigate; he just sends the information. The thing about the CQC is that it has the powers to take immediate action. That includes alerting the independent safeguarding authority as well as taking direct action such as closing a care home immediately, for example. Action can be taken.

Why the local authority, the police or indeed the Secretary of State would be more appropriate needs explanation, as they do not have the regulatory powers and responsibilities of the Care Quality Commission. The Secretary of State, for example, does not have a role in regulating social care directly; that role has been given to the Care Quality Commission. Similarly, local authorities have a role in commissioning care but not in its regulation. Action such as closing a care home is for the CQC, not the local authority.

As for informing the police, that is essentially a decision for the complainant. They might make a conscious choice to complain to the ombudsman rather than the police, but the ombudsman may always suggest to a complainant that a matter needs to be brought to the attention of the police or, alternatively, the CQC. If appropriate—if prosecution is needed, or a particular aspect of the case requires police investigation—the CQC is there, and its job is to refer such matters and ensure that they are dealt with effectively. We have set up a body to which the ombudsman can go to ensure that the necessary action is taken.

The hon. Member for Orpington raised a reasonable concern about statistics being delayed for months or, on occasion, for a year or more. That is a matter of frustration for Ministers as well as for him. He will be aware that many times, Ministers get only a day’s notice of statistics becoming publicly available, so we often have only a limited chance to look at them. We share his frustration about that, but why does it happen? Because statistics must be collated, validated, cross-checked and peer group-assessed, and then conclusions must be drawn from them. Often, that takes time and is a matter for debate within the organisations providing such data, which often seek peer group validation.

The process takes time. That is, I fear, the price of having reliable statistics. The delay causes some of the problems that the hon. Member for Orpington identified,  but I am not entirely sure how we might overcome them. He is right to raise the issue and make that complaint, and I share his frustration to some extent, but I do not really have a way to provide him with a remedy, unless we want less reliable statistics.

Sandra Gidley (Romsey, Liberal Democrat)

We all share that frustration with delayed statistics, because they give us less opportunity for scrutiny, but does the Minister accept that most good trusts have the statistics straight away? They spot emerging trends and take action to find out what is going on and work through it. We need to put that on the record; otherwise, we might come to the conclusion that it is only when MPs start making a noise that action is taken, which is rarely the case. Action has usually been taken by the time we investigate, except in rare cases.

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

The hon. Lady is absolutely right, and I am grateful to her for putting that on the record. Most trusts take action in relation to statistics that they become aware of privately, before validation, peer group assessment and publication. She is right to point out that it is only where some sort of failure has occurred that MPs must start voicing concerns. I hope that I have given reassurance that the powers for the ombudsman to deal with an abuse that comes before him are indeed available in the Bill and more generally through the CQC.

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

I do not think that it is anything that I or the Minister said that caused Committee members on our Benches to exit completely.

I am grateful to the Minister, who made the important and valid point that proposed new section 34P makes possible immediate reporting to the CQC and the independent safeguarding authority. That is helpful, as is the extension to the police—although there is nothing to stop anyone relaying information at any point to the police—and the Secretary of State. In many ways it was helpful to explore that. The Minister rightly observed, in his answer to the hon. Member for Romsey and to my hon. Friend the Member for Orpington, the timeliness of statistical information coming out, so that action can be taken in a timely way, based on knowledge of the evidence base. That has been useful, so I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 72, in schedule 5, page 58, line 3, after ‘provider’, insert ‘or any other person’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss the following: amendment 73, in schedule 5, page 58, line 9, at end insert—

‘(4A) “any other person” under section 34H(4) may include—

(a) the Care Quality Commission,

(b) the local authority,

(c) the Secretary of State,

(d) the Department of Health’.

Amendment 74, in schedule 5, page 58, line 47, after ‘provider’, insert ‘or any other person’.

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

In the Bill as drafted, specifically in proposed new section 34H(4), the ombudsman is limited to making recommendations with respect to action that the provider should take. However, it seems clear that in some circumstances action taken, or not taken, by individuals working for the provider—rather than the provider—and other individuals and agencies will have a bearing on the complaint. By allowing recommendations to be made to the provider “or any other person”, our amendment would allow the ombudsman to make more far-reaching recommendations if and when necessary. In particular, a complaint might arise from circumstances in which the CQC, the local authority or even the Government should have been responsible. The ombudsman should have the power to make recommendations to them in such situations.

For example, the Alberti and Colin-ThomĂ(c) reports into the recent tragedy at Stafford were prevented from addressing Government-inspired—some would argue—or otherwise-inspired systemic failings other than by legislation, but if there were conflicts of interest, the same principle would apply. One of the things that has been shocking about the Stafford situation, which all of us have been wrestling with and trying to understand, is why on earth, despite all the encouragement of and the law on whistleblowing, the nurses, for instance, did not get together in the canteen and decide that it was time to blow the whistle. Some kind of fear factor appeared to be at play. The system did not operate as intended under a series of legislative and regulatory measures from this place. We must all continue to wrestle with the question of how we create that confidence to come together and provide information.

I hope that the Minister will be able to reflect and explain why the ombudsman is at the moment limited in that respect. Perhaps our amendment would help ensure the removal of such a limitation.

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

Our aim with the new scheme is, as far as possible, to be consistent with the existing provisions in the 1974 Act, which govern the ombudsman’s handling of local authority complaints. In those provisions the ombudsman’s recommendations can apply only to the local authority. In the new scheme they can apply only to the adult social care provider. The ombudsman’s recommendations are intended to be a response based on conclusions reached in the investigation of a complaint about the adult social care provider. Such complaints are not complaints about the local authority. Indeed, if they were, they would fall to be dealt with by the existing scheme under part 3 of the 1974 Act. The ombudsman is not dealing with complaints about the Care Quality Commission, the Secretary of State or the Department of Health. That is why we have provided under the Bill for the ombudsman’s recommendations to apply only to the provider. That does not mean that if the ombudsman takes a view that there are concerns that ought properly to be drawn to the attention of others, that cannot be done, particularly when it comes to the Care Quality Commission, local authorities or central Government.

The Bill enables the ombudsman’s statements to be sent to a local authority or to the CQC. Both already have a strong interest in acting on matters that are brought to their attention in that way. It would merely add to the ombudsman’s administrative responsibilities  to require formal recommendation to be made to them and to be responded to in a formal way.

The CQC and local authorities have a direct interest in individual cases, but the Secretary of State also has an interest in the wider picture. He needs to reach a strategic view about services and he is assisted in that process by the provision under proposed new section 34R, which requires the ombudsman to conduct a periodic review of the scheme and to convey to Departments and the CQC any recommendations or conclusions that he has reached about how it operates. In the circumstances, we can leave it to the ombudsman to determine whether he needs to go further in relation to such matters.

I do not wish to go into the distressing issues in respect of Mid Staffordshire that the hon. Member for Eddisbury raised. They are of substantial concern and there have been, as he knows, two important investigations into the matter. We need to look at how in the future the ombudsman will deal with individual issues that are drawn to his or her attention. In the case of Mid Staffordshire, there were issues in relation to the staff not bringing the matters out early enough. We want it to be possible for that to happen, but we must also recognise that, if the ombudsman is to investigate anything, he needs to have something drawn to his attention. It is only then that the ombudsman will become involved.

In a sense, the ombudsman does not deal with the concerns that he expressed about Mid Staffordshire, but when a complaint has indeed been made, he then needs to determine how he will deal with it and ensure that other appropriate organisations respond to their duties. We want to follow the existing provisions under the 1974 Act, whereby the ombudsman can, if he feels it appropriate, draw to the attention of the Government any concerns that he might have in relation to the powers, so that they can consider whether any appropriate action is necessary. On that basis, I hope that the amendment will be withdrawn.

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

That is a satisfactory answer. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 75, in schedule 5, page 58, line 24, at end insert ‘and

(c) the Member of Parliament in whose constituency any person concerned under section 34H(6) lives or works.’.

Currently, the ombudsman would have to send a copy of the statement of recommendations for the provider to the CQC and the local authority. Obviously, that is not the same as making recommendations about them. Amendment 75 would see that a copy was sent to relevant local MPs, too. As we all know from our case loads, such complaints are naturally within the purview and sometimes the preserve of MPs, and it seems sensible that local and relevant MPs should be kept in the loop. I hope that the Minister considers the amendment to be helpful.

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

The complainant might not wish his MP to see the complaint if it is a matter of privacy. Under the current scheme, the ombudsman can supply copies of statements and another information to Members of Parliament on request. That seems the right approach.  I believe that it works perfectly well, and we need to be cautious about interfering with a process that seems to work reasonably well. Hon. Members can obtain information on cases. They are aware of that, for example, when they have correspondence on the matter with constituents. However, intruding an MP into what may be a personally felt case, where a report is shared between people on a confidential basis, may not be what the individual wants. I hope that the hon. Gentleman will withdraw his amendment.

Sandra Gidley (Romsey, Liberal Democrat)

I am curious about the argument. Listening carefully, I think the Minister makes an interesting point. Sadly, it is also the case that some constituents will only go to an MP of one party. I have had such an experience. I inherited some work from my late predecessor, Michael Colvin, and people did not want to talk to me about it. By contrast, there would have been people who would not have gone to him for his political views either. It is a sad reflection that people think that we are politicised when we are in Parliament, but nevertheless, that is the way some constituents seem to prefer to behave.

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

The hon. Lady makes a valid point. It reinforces my argument that the amendment is not appropriate.

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

I take the point about privacy seriously—it is an important point made by the Minister. Equally, I think that the point that the hon. Member for Romsey made, regarding the perception that once elected, we serve all our constituents, irrespective of whether people voted for our party—or if it turns out that they did not vote at all—is also important; we should recognise that there is the other side. I accept the Minister’s response, and I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 76, in schedule 5, page 58, line 31, at end insert—

‘(8A) In the case of section 34H(8)(b) applying, the Local Commissioner must submit his reasons, in writing, to the Secretary of State.’.

The amendment seeks some accountability for the ombudsman when he decides not to identify individuals. I just hope that the Minister is able to expand a little on the previous answer and give us some examples as to when he envisages that privacy should occur. To some degree, he has already answered it, so maybe there will only be a brief response.

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

The ombudsman would normally want to name the provider in a statement because it is in the public interest—there will be a public statement on the ombudsman’s conclusion on a complaint. The provision in the Bill is therefore worded to allow the statement to identify the provider wherever possible. But it also recognises that there may be human rights issues in doing so, such as when there are risks to the privacy of the individual provider. There are providers who may be close to an individual, and others may have a long-term relationship with the individual.

On the other hand, there are more likely to be circumstances where the ombudsman will want to ensure that an individual service user cannot be identified as a result of naming the provider in the statement. In a small care home with only 100 or so residents, the  identification of the provider may allow others to work out who the individuals affected in the case are. Of course, the complainant may actively wish the provider to be named and not be concerned about being identified.

We do not envisage that the discretion available to the ombudsman will mean that he will decide in every case that it is appropriate for a provider or another person to be identified as a result. The point of the provision is that the ombudsman can decide on the basis of the merits of a particular case. We give him that discretion because it would be difficult to make provision for all the precise circumstances where identification is or is not appropriate. Leaving it to the ombudsman in those cases is the best way forward.

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

I accept the Minister’s response, and I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 77, in schedule 5, page 59, line 46, leave out ‘month’ and insert ‘week’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss amendment 78, in schedule 5, page 61, line 12, leave out ‘month’s’ and insert ‘week’s’.

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

The two amendments are probing in nature. They try to ascertain why the particular time frames have been chosen in the two cases concerned. In the schedule, the provider will be given a month to notify the ombudsman of the action it plans to take in response to his recommendations. Amendment 77 would reduce that to a week—a month can seem a rather long time in the tough circumstances, particularly of serious complaints. I hope it will give the Minister the opportunity to explain the thinking behind the time frames. It is also important to note that that is the time for a response, not time for action to be taken. I hope that the Minister will recognise that there may be a difference between the two.

Amendment 78 relates to the period of warning the Government get that the ombudsman is about to release previously unpublished Government information. As currently drafted, the ombudsman can publish after a month, or sooner with written consent; so the question arises as to why the Department needs a month’s notice. I would have thought that a week would be sufficient, particularly given the move to transparency. I hope that the Minister takes the amendments in the constructive spirit in which they are intended.

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

Three months is allowed for a local council under part 3 of the 1974 Act. I do not believe that that long is needed for a social care provider, which typically will have fewer processes to go through than a local authority. More importantly, processes of fairness require that the provider have adequate time but not too much time. It is about getting the balance right.

The provider should not be placed under undue time pressure to respond. He will often need to consult staff, check records and take other action that it would be impossible to do effectively within, say, a week. Normally the provider would need to decide what action to take to improve the service and remedy any inconvenience, suffering or financial injustice that a complainant has experienced. To ensure that the ombudsman’s recommendations are met, the provider cannot reasonably be expected to consider such matters in a week.

I appreciate that this is only a probing amendment. It is certainly not in the interests of the scheme as a whole if providers cannot respond properly to recommendations. I hope that explains why we have reduced the time from three months to one month, and why we felt that reducing it further would not be appropriate.

As for the period that the ombudsman must give a Government Department if he proposes to use Government information, this is in essence about disclosure of information. The relationship between a Government Department and the ombudsman is important. The ombudsman may wish to cite Government information in order to offer complete responses to complainants, and the provision is worded to enable that to happen.

I believe that a month is reasonable to allow the Department time to consult internally and to give adequate consideration to the implications of the information’s publication. A shorter period could have a detrimental impact on the quality of response. We want to ensure that the information that the Government are providing can be collated, examined and checked for accuracy. If the data are available in a non-collated form, they need to be collated, brought together, checked for accuracy, peer reviewed and examined. Trying to squeeze that into a month could be difficult.

Moreover, we also want to ensure that if information is provided, it is directly relevant. Checking the detailed local relevance may be important in some cases. I hope that we have got the balance right. It was with a view to doing so that the provisions were put in place.

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

I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 79, in schedule 5, page 62, line 21, at end insert ‘or

(e) the Care Quality Commission’.

The Bill makes provision for the local government commissioner to consult with the Parliamentary Commissioner or Health Service Commissioner, or his equivalents in Wales and Scotland. Our amendment seeks to add the Care Quality Commission to the list. As it is the registration, inspection and regulatory body, surely such consultation should be enabled.

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

The relationship between the ombudsman and the CQC is important. The Bill allows the ombudsman to send copies of his statements to the CQC and also to send any information at any date if it appears relevant to the CQC’s functions. Findings by the ombudsman are often indicators of poor service and performance, which impacts on the suitability of a provider to be registered, and the CQC can then take action to deregister a provider.

The CQC will need to take account of concerns, complaints and allegations when determining whether services are being safely provided and are of appropriate quality. Such intelligence will feed into the risk assessments that the commission will make when determining the level of scrutiny that it should apply to a particular provider. The commission will also have the freedom to investigate a case if it has concerns that the health, safety or welfare of patients or service users is or may be at risk.

We look to the CQC and the ombudsman to agree arrangements between themselves as to how best complaints data can be fed from the ombudsman into the CQC’s registration assurance systems. Those operational details are, of course, best left to the organisations to work out. I believe that there is sufficient provision in the Bill to ensure the appropriate level of interaction and collaboration between the two bodies. They will have obligations put on them. Let us allow them to work out the best ways of putting detailed implementation in place.

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

The Minister has answered the question. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 80, in schedule 5, page 63, line 23, leave out ‘obtain the consent of’ and insert ‘inform’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss amendment 81, in schedule 5, page 63, line 24, leave out ‘or’ and insert ‘and’.

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

These are probing amendments. Amendment 80 removes the need to obtain consent. Why has the ombudsman not been given the discretion to decide that himself and what would be the factors involved in making and denying consent?

Amendment 81 questions why there is an “or” in this schedule. It seems that if you cannot get something from mum, then you should try and get it from dad. The views of both parties should be sought and if they do not agree then they should wait. If there is one thing that my wife and I made a clear, early decision about when we had children, it was that we should always back each other, even if we do not agree, so that the children cannot divide and rule. To a large degree it has stood us in good stead, so the same principle should apply here.

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

What applies as a parent may not always apply as a Minister. [Interruption.] Yes, perhaps it should. It is important that the complainant is asked for their consent before a joint investigation takes place. There may be reasons that are not obvious to the ombudsman for the complainant not wanting the investigation to be joint; there are also considerations of data protection and human rights. To remove the requirement for consent would be inconsistent with the joint investigation provisions recently introduced in legislation covering the parliamentary and health service commissioners. As we already have it in one area, why should we change it? We should remember that the ombudsman is acting for the complainant. In effect, it is the complainant’s right to ascertain their own wishes.  They should have some control over the process. If the complainant objects to a joint investigation, it would be illogical to override that. The right of consent is critical for service users. We are seeking to make complainants and people affected by complaints feel more empowered and central to the resolution of these complaints. I suspect that the hon. Gentleman does not want to take some of that power away from individuals and give it to the ombudsman, and nor do I. On that basis, I hope the hon. Gentleman is able to withdraw the amendment.

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

I am grateful for the Minister’s answer. They were probing amendments and this has been a useful exchange. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 82, in schedule 5, page 64, line 42, at end insert

‘and the content of the complaints it has processed since the last review was made under this subsection.’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss amendment 139, in schedule 5, page 65, line 18, at end insert—

‘(2A) The Local Commissioner may, in the Part 3A annual report, assess the costs of the complaints process borne by—

(a) the taxpayer; and

(b) the provider; and

(c) the service user.’.

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

The amendment seeks to include in the ombudsman’s review of its own activities a review of the nature and content of complaints it has dealt with. Taking oral evidence during the passage of the Health and Social Care Bill last year, Anna Walker of the Health Commission pointed out the value of the regulator inspector also having access to complaints data. The amendment would give the public and policy makers an overview of the complaints being made, so that similarities can be charted and solutions explored.

Amendment 139 addresses the contents of the ombudsman’s annual report. It is worth having it on the record that the Government expect, according to the regulatory impact assessment, each of the 800 to 1,000 complaints a year to cost the taxpayer £1,500, through the ombudsman, and the provider £800. The RIA elaborates in paragraph 21 that

“there is a possibility that providers will, depending on the state of the care market, be able to pass on their additional costs to commissioners—probably mainly to people funding their own care.”

The amendment would seek to establish the breakdown of these costs every year, in part to control rises in fees. I ask if the Minister is happy that this measure would push up care home fees, which is the fear. Could the Minister also confirm whether the local government ombudsman has been voted the additional resources he needs—about £1.5 million in the Department’s estimate? There was a real concern during the passage of the Health and Social Care Bill that the Government declined at every point to discuss the extra resource that the  parliamentary and health service ombudsmen would need to deliver the legislative requirements. We have since discussed that and found from information provided by the ombudsmen that that has now been put in place; that has been helpful.

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

I am happy to write to the hon. Gentleman on those points.

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

I will be happy to receive the letter. I beg to ask leave to withdraw the amendment.