Clause 12

Consumers, Estate Agents and Redress Bill – in a Public Bill Committee at 5:45 pm on 17th April 2007.

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Investigation of complaints made by vulnerable designated consumers

Photo of Susan Kramer Susan Kramer Shadow Secretary of State for Trade & Industry, Trade & Industry, Shadow Secretary of State, Liberal Democrat Spokesperson (Trade and Industry)

I beg to move amendment No. 47, in clause 12, page 7, line 18, after ‘vulnerable’, insert ‘or otherwise disadvantaged’.

The clause discusses the investigation of complaints made by vulnerable designated consumers. The opening subsection states:

“Subsection (3) applies to a complaint which is made...by or on behalf of a vulnerable person in that person’s capacity as a designated consumer”.

The amendment would change the word “vulnerable” to “vulnerable or otherwise disadvantaged”.

I have serious concerns about the subjectivity of the use of the word “vulnerable” as a definition, as it is not a word that is widely and commonly used and there is not a wide and common understanding of it. There is an attempt to define it in subsection (2), which states:

“For this purpose a person is ‘vulnerable’ if the Council is satisfied that it is not reasonable to expect that person to pursue the complaint on that person’s own behalf.”

Again, that is an extremely subjective set of judgments. There is not a lot of history to it and most people  might very much disagree about whether they are part of that vulnerable community. Honest people and those of integrity and judgment could disagree about whether they fell into that category.

We therefore propose not the removal of the word “vulnerable” but the addition of the word “disadvantaged”, about which there is a much broader sense of understanding. People on low incomes, older people and those with a range of disabilities would understand themselves to fall within the disadvantaged category. I feel that “vulnerable” is a fairly insulting notion, because it suggests that someone is short on the ability to understand or to be capable, when it might simply be that they find it difficult to exercise their rights, which can certainly be true.

We want to ensure that the category includes the people whom we recognise more typically as disadvantaged. We discussed a proposal, tabled by the right hon. Member for Coatbridge, Chryston and Bellshill, that had a much fuller listing of groups that I would have called vulnerable or disadvantaged, but which have disappeared from the set of definitions in the clause. I should be interested to hear the Minister’s comments on the issue and to have at least some reassurance that the intent of the clause and its language is to cover the group that we would consider to be disadvantaged, not to provide the opportunity for a very much narrower set of definitions, which is how I fear some will interpret the clause.

Photo of Ian McCartney Ian McCartney Minister of State (Trade & Investment), Department of Trade and Industry, Minister of State (Trade & Investment), Foreign & Commonwealth Office

What I shall say about the amendment is in addition to what I said in previous discussions and to what I will say in other discussions that we will have on the matter. I accept what the hon. Lady said about language. It is indeed of critical importance, but the amendment would not produce more appropriate language than is in the Bill, and I shall explain why. In the end, it is down to what we are trying to achieve in practical terms and, importantly, for whom.

Some examples are provided in the explanatory notes, but even those examples represent a huge, diverse community of people who, for different reasons, will require the support of advocacy bodies. In addition, the organisations that provide postal, water, gas and electricity services, whether supply or distribution, will be required to make changes to their complaints processes to ensure that they can deal effectively with the issues raised by vulnerable consumers. They must be accountable.

I hope that what I say will reassure the hon. Lady. I want to give an example of the activities that are now taking place because of campaigning by the NCCand other organisations that represent a range of consumers who have not special needs, but needs that require appropriate responses and resources to ensure that there are effective opportunities to resolve the issues that affect them in the provision of goods or services. I hope that I am able, through my remarks, to build further confidence in what we want to achieve through the NCC and by encouraging and building on cultural and organisational change in the organisations that provide the goods and services.

Any list of specific examples of vulnerability carries a high risk of leaving out a group of consumers who  could be provided with much-needed assistance by the new council. Instead, the Bill leaves it to the new council’s discretion to assist consumers who are in need of assistance. The addition of the words “or otherwise disadvantaged” simply would not add anything worth while to the meaning of the provision.

Clause 12(2) provides that, for the purposes of the clause, a person is vulnerable

“if the Council is satisfied that it is not reasonable to expect that person to pursue the complaint on that person’s own behalf.”

The vulnerability may be of a long-term or a short-term nature. For example, grief can so overwhelm a person when a close relative dies that they are incapable of dealing with aspects of their life, including issues around gas, electricity, water, postage and so on. They need help, too. I doubt that it would be possible to find a legal, technical definition for what we are attempting to do by including someone like that. The debilitating loss of a loved one and the physical and emotional consequences affect hundreds and thousands of people in Britain each month.

There will be people who end up during the course of a complaint with a disability because of a trauma. There must be the ability between the opening up of a complaint and the resolving of it to ensure that an individual whose circumstances change is treated appropriately. That cannot be expressed in legislation in the way that has been suggested.

The language is important. Wide discretion is not discretion to do nothing; it is discretion to try to maximise the pool of opportunity for those who need support and assistance for whatever reason, and it is important that we view it in that way. The Bill does not go any further in defining what “vulnerable” means, because there are many ways in which consumers can be vulnerable. It will provide the necessary flexibility for the council to examine cases with the benefitof increasing understanding of what constitutes vulnerability in any given circumstance.

I wish to give the hon. Lady an assurance. There is a challenge here, is there not? Going back to my earlier remarks, the challenge is to ensure that we have the knowledge base and the skill sets so that at the point of contact, the individual concerned is dealt with with dignity, respect and understanding of the issues in their life that will affect their advocacy opportunities. That is why, for example, the Energy Retail Association has a complaints charter, and we need to examine such good practice and involve it in the new NCC. For example, the ERA has a support strategy to try to ensure that no vulnerable customer is disconnected from their energy supply, in accordance with ERA guidelines. It is now trying to train staff specifically to handle complaints and provide staff specifically trained to deal with vulnerable customers, and senior managers are empowered to resolved disputes on behalf of vulnerable customers.

The matter is not just about the role of the NCC. It goes back to another point that I made earlier to my right hon. Friend the Member for Coatbridge, Chryston and Bellshill: it is about changing the structure and the way in which companies operate in the relevant sectors, so that they operate effectivelyon behalf of the consumer and recognise their  responsibility. The impact if they fail to do so will be that they end up in a redress situation. I am certain that in those circumstances the redress schemes will be effective. I cannot think of a company that wants to spend its time getting a bad name because of how it deals with consumers and seeing tens or hundreds of thousands of pounds a month leaving its coffers because it acts inappropriately towards disadvantaged consumers. There is a big emphasis on their gettingit right—prevention as part of the cure. It is also important that there is a process for learning from mistakes and sharing best practice.

We must improve the skill mix and capacity for the system to work effectively, and I give the hon. Lady the assurance that part of the process of implementation will be about that, to ensure that the commitments given in the clause can be implemented practically in people’s day-to-day experiences. I believe that that is what the hon. Lady is on about—giving certainty to consumers’ day-to-day experiences when they have an interface with the NCC, the companies concerned and the redress scheme. That is important, and I accept what she says. I hope that, with those assurances, she will be able to accept what I am saying.

Amendment No. 47 would add to the word “vulnerable” the words “or otherwise disadvantaged”. Again, that is not necessary. As I said, any list of examples of vulnerability carries the risk of leaving out a particular individual or group of consumers.

I hope that the hon. Lady accepts that I have genuinely tried to set out the ethos of what we want to do; the challenges that we face in doing it; the training and improvement that we need in the skill mix so that the NCC can act as advocate, and the role that companies need to play by changing. Some have to change dramatically, and I have no doubt that the redress schemes will change the landscape dramatically. It will no longer be a matter of shrugging one’s shoulders and saying, “Well, we’ll get to that complaint. Sorry, it won’t happen again.” There will be an obligation on all in the system to make it operate effectively and to ensure that for anyone who has a disadvantage, for whatever reason, we have the ability, skills and ethos in the organisation to deal effectively with their issues.

I turn to a final point that I believe is important to the hon. Lady and is also important to me as a Minister. It is inevitable when a new organisation is established that there will be a problem with working it in and getting it established, up and working. No organisation has ever been created and from day one operated at 100 per cent. effectiveness. I do not wish to make an excuse in advance, and the implementation strategy is to make the organisation as effective as we can from day one. It is therefore important in the process of implementing the strategy that we havethe capacity to consider thoroughly how to ensure that the commitments given in the clause work effectively. The experience that the clause is intended to create is an effective one on behalf of those with a disadvantage.

Again, I will be happy during the implementation stage after the Bill has become an Act to be as transparent and open as I can. I give another commitment that the new body will consult not only Ministers but those who represent people out in the community who have specific needs. It is important to  build such partnerships. There are skills and knowledge out there that need to be utilised and developed.

In giving that assurance, I return to another point, which will be my final one. We are not only giving it a duty to provide information but a research duty, and part of that research must surely be for the organisation, in representing consumers, to be able to look to whether or where improvements can take place in a quite transparent, honest and effective way. This is one area that, if Members do not mind me saying so, is like building the Forth road bridge. Once we start the process of change then, on a step-by-step and ongoing basis, we will see the ability to right the wrongs that have gone on for many years in the public and private sectors—a failure to provide proper advocacy and other services for disadvantaged individuals and groups. When something goes wrong, it is always those who are disadvantaged that end up the poorer, whether it is a public service, or a service provided by the private sector for the public one, or a private sector provider of goods and services who does not do it appropriately.

This is an important area, which we will build on. There will be an ongoing process of learning and improvement for the organisation and the role that it plays next year, the year after and the one after again, in effecting services on the part of people who are disadvantaged. I hope that my comments will reassure the hon. Lady, at least to the point that we are in the same game and want to achieve the same objectives so that, in a practical way, the experiences that disadvantaged people have had in the past will not be repeated in future.

Photo of Susan Kramer Susan Kramer Shadow Secretary of State for Trade & Industry, Trade & Industry, Shadow Secretary of State, Liberal Democrat Spokesperson (Trade and Industry) 6:00 pm, 17th April 2007

I appreciate the robust definitions that the Minister has given of people who should perhaps fall within this vulnerable category, and who could look for support and help from the National Consumer Council. I will give way by withdrawing the amendment, but in terms of the underlying sentiment the Minister should be aware of some of the difficulties around the language.

I will give an example; I have a constituent with a severe speech impediment, and when he attempts to contact me on the phone, it is a long and difficult process to understand what he is telling me. I am sure that he would be considered “vulnerable” in the eyes of this definition. If we were to look into his face and tell him that he was vulnerable, he would be utterly insulted. He would regard himself as disadvantaged by society, but would not see himself as falling into that category of helplessness that one calls “vulnerable”. That is a point frequently missed in the kinds of language and definitions that we use, so I feel strongly that it would be wise to look at this again.

However, I fully accept what the Minister says—that this is in a process in motion, as it were, and that change will come over a period of time. He has provided some extensive reassurances that the use of “vulnerable” is not an attempt to narrow but to broaden. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Susan Kramer Susan Kramer Shadow Secretary of State for Trade & Industry, Trade & Industry, Shadow Secretary of State, Liberal Democrat Spokesperson (Trade and Industry)

I beg to move amendment No. 48, in clause 12, page 7, line 30, leave out ‘may’ and insert ‘shall’.

This amendment may seem among the tiniest that could be found, but it is a crucial one. We are looking now at subsection 3 of clause 12, which reads,

“Where a complaint to which this subsection applies is referred to the Council by or on behalf of the designated consumer, the Council may investigate the complaint for the purpose of determining whether it is appropriate to take any action under subsection (4)”.

We feel strongly that of all the places where “may” is inappropriate—and where “shall” should be inserted—this one is overwhelmingly important, because this is about any requirement on the NCC to follow through and deal with individual complaints from the kind of vulnerable consumers that we have just discussed.

Earlier, when my hon. Friend the Member for Solihull raised the issue of changing the word “may” to “shall”, when looking at the various duties of the NCC, the Minister gave an extremely enlightening reply that, regarding this clause, was exceedingly worrying. I do not have it verbatim but he was saying, in effect, that it is necessary for the NCC to have flexibility within its work programme function not to carry out an activity perhaps to the fullest extent. There had to be regard to the way that money was spent, and to funding.

I must say that, in this area, where we are talking about vulnerable customers—someone identified under the definition as “vulnerable” and therefore in need of support—to turn around and say that there is any possible scenario in which they cannot rely on the NCC to take their case forward—we are only talking about taking it forward to the point of investigation, and we are not saying that the NCC must carry this right the way through to get a resolution, because they are not even required to give advice or whatever, just to determine whether or not an investigation would be appropriate—it seems to me that there should be no possibility that a person could hear the word “no” in that kind of instance.

So I say to the Minister that, although I understand that he is concerned about independence, it seems to me that there must be a necessary balance here. People who are highly vulnerable need to know that the advocate is there for them, and there for sure. Therefore, to put in a provision for the independent council to decide that, in some cases, or in all cases, or in a percentage of cases, or after a certain number of cases have been reported in the year, or whatever else, that it need not exercise this particular set of roles is exceedingly worrying.

I am responding to the comments that the Minister made, that flexibility is required; here is a case where flexibility should not be required. I ask the Minister to reconsider in this instance, and to recognise, by character, that it is different from the other instances where we have raised what sounds like a similar issue, but this issue, by all measures, is far more important.

Photo of Ian McCartney Ian McCartney Minister of State (Trade & Investment), Department of Trade and Industry, Minister of State (Trade & Investment), Foreign & Commonwealth Office

An advocacy organisation is best judged by its effectiveness, by the decisions that it makes at the outset, when it receives a complaint, as to the appropriate place where that complaint should be taken, and who has the responsibility to take it to that point and ensure that the complaint is dealt with in a relevant way.

That is why I think that the amendment is not particularly helpful for consumers in general and vulnerable consumers in particular. That is because there will be occasions when the complaint is not best dealt with by the NCC, but by someone else, because it is their responsibility. What the clause seeks to do is to ensure that, whatever access the consumer makes, at that access point someone takes responsibility to assist them and not simply say: “Not ours, Guv’. Go somewhere else. Look up Yellow Pages, but it’s not us. Go to the CAB, but it’s not us.” I do not think thatthat approach is reasonable or right. Therefore it is important that the new council must consider complaints from vulnerable consumers and assess whether those complaints should be investigated by the council or should be referred to another party better placed to resolve the issue.

In the end, what is the bottom line here? When a complaint is made, the bottom line is to ensure that it is accessed at the right point to be resolved, and hopefully resolved to the benefit of the consumer. For example, a breach of a license condition would be better dealt with by the appropriate regulator, not by the NCC, as set out in clauses 14 or 15. Those clauses allow the new council to refer matters to Ofgem or Postcomm, ifit considers that the regulators should use their enforcement powers to remedy the problem.

Photo of Susan Kramer Susan Kramer Shadow Secretary of State for Trade & Industry, Trade & Industry, Shadow Secretary of State, Liberal Democrat Spokesperson (Trade and Industry)

I appreciate the Minister giving way. Let me read again the measure—clause 12(3)—that I am referring to. It says:

“Where a complaint to which this subsection applies is referred to the Council by or on behalf of the designated consumer, the Council may investigate the complaint for the purpose of determining whether it is appropriate to take any action”.

In other words, we are even using the word “may” about whether or not the complaint should be sent off to another body, or retained within the NCC. The clause does not say that the council must carry the process out to the far end. There is not even an obligation on the council to decide whether the matter is one with which it should deal or one that should go somewhere else. The case that the Minister is making relates to the step afterwards—after the “shall” has taken place, so I question whether he really intends that “may” should stand, at least within the meaning ofthe Bill.

Photo of Ian McCartney Ian McCartney Minister of State (Trade & Investment), Department of Trade and Industry, Minister of State (Trade & Investment), Foreign & Commonwealth Office 6:15 pm, 17th April 2007

I can see where the hon. Ladyis coming from, but she is misconstruing the Government’s intention. There is no point in having an advocacy body and yet giving it a bureaucratic obligation to deal with matters that should be dealt with by some other body that has the appropriate powers. Nor would it be right to create a body under the clause which could opt out and say, “This has nothing to do with us.” The proposals must be seen practically. The NCC is an advocacy body, and we are trying to ensure certainty that, when complaints are made, an assessment will be made of the best body to deal with them—based on the statutory reasons, or reasons of skill, or a mixture of both—so that they are directed where they should go. That is important.

We see that type of process all the time in our capacity as MPs. Every day, people come to our offices as advocates, and our staff have to make an assessment. If we want to be friendly with everyone and give a good impression, we say, “Don’t worry, I will deal with this complaint”, and they leave feeling happy. But two days or two weeks later they come back and say, “What happened to my complaint?” Our staff system is not designed to deal with complaints in that way—our job is to be advocates on behalf of our constituents.

The same point applies in relation to the clause in a broad sense. We need the most appropriate person: first, to advocate; secondly to resolve; and thirdly to remedy. If a remedy cannot be found, there should be redress. That is why it is important to deal with things in the way that we are proposing.

If Ofgem can use its powers of determination over connection changes to the distribution network, it should do so, but when the matter is best dealt with by agreement between Postcomm and the council, it should be dealt with in that way. The most important consideration is to ensure that the arrangements provide greatest ease of use by consumers.

The hon. Member for Richmond Park agrees with that position, and her objective is the same as mine. She just does not believe that the clause goes far enough. However, ultimately, the question is not just one of the words on paper. I keep coming back to the point that the question is also one of organisational ethos, skills, structure, advocacy and the ability to give effective representation. When users come forward, they should be signposted to the appropriate people. That is why the provision is framed in the way it is.

I should not ask the hon. Lady to trust me—that would not be fair. She is acting as a legitimate advocate. However, I seek to reassure her on the basis thatthe legislation is not drafted on a minimalist but a maximalist approach.

Let me be controversial. An advocacy organisation can be effective only if part of its advocacy role includes telling people, “You ain’t got a case”, or telling people that their case should be dealt with somewhere else. That is fine, as long as the quality of the relationship between the advocacy organisation and the other body is made clear. There should be relationships to ensure that individuals who enter the complaints process and initially go to the wrong organisation are directed by that organisation to the right place. That is what the clause is about and I assure the hon. Lady that that is what we are trying to achieve.

Photo of Lorely Burt Lorely Burt Shadow Minister (Business, Innovation and Skills), Shadow Spokesperson (Business, Enterprise and Regulatory Reform)

I apologise if I am stretching the Minister’s extensive good will and patience. He just said that the organisation must be able to tell people the truth about whether their complaints can be resolved. Surely, however, they cannot do that unless they have investigated the complaint. All that my hon. Friend and I are trying to obtain from the Minister is an assurance that when a complaint comes forward, somebody will have to assess whether the individual has a valid complaint. I think that that is what the Minister is saying and I would be grateful if he would confirm that.

Photo of Ian McCartney Ian McCartney Minister of State (Trade & Investment), Department of Trade and Industry, Minister of State (Trade & Investment), Foreign & Commonwealth Office

I went over and over that point and I do not want to labour it. I repeat that the clause has to be seen in connection with clauses 14 and 15. If those building blocks are put together, we will have an effective process for dealing with the individuals whose interests the hon. Lady has been advocating.

Photo of Susan Kramer Susan Kramer Shadow Secretary of State for Trade & Industry, Trade & Industry, Shadow Secretary of State, Liberal Democrat Spokesperson (Trade and Industry)

I thank the Minister. He is right to say that he and I have exactly the same intentions for the Bill. Having those intentions emphatically repeated on the record is exceedingly helpful. I still think that the drafting of the Bill is in error, however. It does not reflect the statement that the Minister just made. I hope that his drafting team will take an opportunity to examine the language; I think that they have fallen into the trap of using “may” automatically as they work through the Bill, and have not recognised that they are dealing with a clause of a different character. From everything that the Minister has said, it seems thathis intention would be for the NCC to consider a vulnerable customer’s complaint to see whether it is appropriate to pursue it.

I hope very much that the issue will not be dropped by the drafting team. As the Minister’s intention was so clearly stated, however, and because I know that there is no possibility of winning on this issue as we have no support from others in this House, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.