Report (2nd Day)

Part of Care Bill [HL] – in the House of Lords at 6:45 pm on 14th October 2013.

Alert me about debates like this

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 6:45 pm, 14th October 2013

My Lords, at the heart of these amendments is an important issue: the voice of older and disabled people. I hope that I can give some reassurance to the House.

Amendments 76, 123 and 124 would include in the Bill provisions for an appeal system that allows individuals to appeal against decisions of, first, the local authority relating to their needs for care and support and, secondly, the relevant NHS body relating to their eligibility for NHS continuing healthcare. Of course, those are quite separate matters.

On the amendments relating to local authority decisions on care and support, I will briefly run through the current, essentially complaints-based, arrangements. These arrangements were reformed via the 2009 regulations, which require local authorities to publish arrangements for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedures, which may of course result in varying user experiences. If, having raised a complaint with a local authority, a person is not satisfied with the response, they can refer the complaint to the Local Government Ombudsman. The ombudsman is independent of the local authority. It can investigate whether the decision-making process has been conducted appropriately and make a recommendation to the local authority.

As has been said, the Bill will result in many more people being brought into contact with their local authority, so it is appropriate that we are reviewing the current arrangements regarding appeals via a public consultation. If that is consistent with what the noble Lord, Lord Hunt, regards as the Government having a second look, I believe that we are doing so. Through the consultation we have heard from user representatives a concern voiced this evening by the noble Lord, Lord Warner: that current arrangements are not sufficient to withstand the additional pressures of the Bill reforms.

While our initial view is that it is likely that some changes are needed, we really need to wait for the consultation to close before making any judgments. I will be in a position to update noble Lords about that in December. Although I acknowledge that this is a work in progress, the Government are on the case. I hope, with that assurance, that the noble Baronesses and the noble Lords will therefore be content to withdraw Amendment 76 and not to move Amendment 123.

In response to the noble Baroness, Lady Meacher, who asked whether we would consider a formal tribunal, our current assumption is that a tribunal process would be likely to slow down the process of resolving complaints and would add significant costs which would, in turn, produce a further burden on the system. There is a range of approaches to resolving complaints and providing redress. It is advantageous to have a flexible system that works well and efficiently at a local level, in a manner that is proportionate to the type of complaint.

The noble Baroness also asked whether we might consider an independent panel rather than a tribunal, although I was not sure whether those two were the same thing in her mind. The funding reform consultation that covers this issue will close late in October. Following this review, should we decide to make a change we expect we could do so through secondary legislation. Of course, we are not ruling anything out in the consultation. If it transpires that we wish to make changes that require primary legislation we would ensure that proposals were brought forward at the earliest opportunity. However, if changes were desired—for example, to introduce a requirement whereby a decision was reviewed by an independent panel—in this case we would do that by amending existing regulations.

The noble Baroness asked whether I could assert that decisions in this area will not vary across the country and that there will not be errors. Of course, there is scope for errors to take place and for variation. I can say that we would want the following principles to underpin the mechanisms for redress and resolving complaints: clarity, local accountability, fairness and timeliness. Lastly, there should be an independent element. I hope that that is helpful as a guide at this stage.

I will now turn to Amendment 124, which relates to NHS continuing healthcare eligibility. This amendment seeks to make provisions in regulations that set out a system for the appeal or review of decisions made about NHS continuing care, independent of the NHS, on a question of fact or law. I can assure noble Lords that such a provision is not necessary. Decisions as to whether someone is eligible for NHS continuing healthcare are, of course, taken by the relevant NHS body. We have a well established process for the review of such decisions, which is well understood by the NHS and local authorities. It is set out in the 2012 regulations addressed to CCGs and the NHS Commissioning Board, and in the National Framework for NHS Continuing Healthcare. The regulations and the national framework prescribe a three-step process that involves independent scrutiny.

The first step is for an individual to request a review of an eligibility decision; this would be undertaken by the relevant body itself, usually the clinical commissioning group. In the second step, NHS England arranges for an independent review panel to review the process undertaken and the decision reached by the relevant body. The panel will have an independent chair and will include NHS and local authority representation—not, incidentally, the bodies responsible for the original decision. The relevant body should accept and action the recommendation of the panel in all but exceptional circumstances. The third and final step involves taking the case to the Parliamentary and Health Service Ombudsman for an independent review.

There is, therefore, sufficient independent scrutiny already within the current review process. However, I understand that the level of independence in this process is not always adequately communicated. We are therefore happy to explore how we might improve this, outside the legal framework. I hope that the noble Baroness, with those reassurances, will feel able to withdraw her amendment.

The noble Baroness said that in her view, individuals are left waiting too long for a decision on CHC eligibility and a panel decision. The national framework sets out that in most cases CCGs should make eligibility decisions within 28 days of receipt of a checklist or other notification of potential eligibility. However, in March last year, we issued good practice guidance to CCGs, which states that there should be a timeframe for the responsible NHS body to deal with a request for a local review, which should be within three months of receipt of a request, and a timeframe for the independent review to be conducted, which should be within three months of the request. I hope that that information is useful to the noble Baroness, and that it will guide her decision.