Care Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Mackay of Clashfern

Monday 14th October 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I support these amendments requiring a system of adjudication able to deal with the whole raft of matters dealt with under the Care Bill, including the borderline with continuing healthcare. The local authorities—152 or something of that sort—will administer the care system. It is quite easy to see that the same problems may arise in different local authority areas. Having a respected system for dealing with these matters would simplify a good deal of this area. I therefore strongly urge the Government to have in place a system which would provide reasonably rapid adjudication of all these issues. The social security commissioners provide a kind of example. One possible solution would be to extend the jurisdiction of the social security commissioners to include this area. Social security arrangements are certainly different from the care arrangements, but there may be sufficient similarity to make that possible. Something along the lines of the social security commissioners would be necessary for dealing with this and bringing into effect a system which local authorities right across the country would respect when one local authority’s decision was dealt with by this adjudicating authority.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.

When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.

However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.

The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.

Care Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Mackay of Clashfern

Monday 22nd July 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, when this issue was discussed previously I had the feeling that Monitor had at least some claim to having the kind of expertise which goes some distance in this area whereas, as far as I could understand it, CQC did not seem to. I entirely agree with the noble Lord, Lord Warner, that what either of them has at the moment is probably unequal to the task of seeking out exactly what is going on and seeing how great the risks are. It is pretty obvious that to understand the risks in these financial transactions is a very difficult task. We have seen examples, not particularly in this area but in others, where serious risks have emerged which were not suspected until very close to the time of their emergence.

I also agree with the view that one great factor in the care regime is the number of local authorities that are to be involved. Some degree of understanding at least the variation across these 152 authorities is essential. During the workings of the Joint Committee, I was impressed by the skill of some of the local authority representatives we had before us but they were in quite a particular position in relation to their work. I am not sure that their knowledge, expertise and feel for the situation necessarily goes right across the sector. I do not at all decry the valuable work that local authorities do but the variety of tasks assigned to them is very great and the care situation must be among the most difficult of their responsibilities.

[Lord Hunt of Kings Heath]

My Lords, this is an important debate and the collapse of Southern Cross has brought it home to us how the risk of financial failure is likely to be a continuing problem in this sector. That is why it is important to understand whether the regulatory regime that the Government are proposing will be robust enough and whether it will have access to the kind of information that will enable the regulator to take a view on the viability of those companies which seek to do business in this area.

We are going back partly to our earlier debates when we discussed the new failure regime. At that time, I referred to the Department of Health factsheet that we were given, which said that the new failure regime will give regulators clear roles in tackling failure. However, I do not think that is actually so in practice. According to the department, the Care Quality Commission will focus on exposing problems and requiring action while Monitor and the NHS Trust Development Authority, which deal with non-foundation trusts, will focus on intervening if a poorly performing provider is unable to resolve the situation by working with commissioners. As we have heard today, the CQC retains enforcement powers for social care, general practice and independent sector providers. This whole picture is very confusing and in his Mid Staffordshire inquiry Robert Francis made it clear that regulatory complexity can contribute to system failings.

I am still unclear about the interrelationship between Monitor, CQC and the NHS Trust Development Authority so as to know whether they are going to work together to ensure that problems are acted on. I am still unclear whether when Monitor and the NHS Trust Development Authority are asked to intervene as a result of the CQC’s concern about findings in relation to safety and quality, they simply carry out the instructions of the CQC or have to go through the same process to satisfy themselves as public bodies with specific statutory duties—certainly in the case of Monitor—whether they share the concern about quality or simply take the CQC’s word on trust. As the actions of these regulators are likely to be tested in the courts, one way or another, clarity at this stage would be very welcome indeed.

My noble friend makes the case that, because of its expertise and experience, Monitor would be a better bet for looking at financial issues to do with care providers. It is very difficult to understand why bits of the system have been dealt with differently and the CQC is considered acceptable in relation to private care providers for adult social care and so on but not for NHS foundation trusts. The Government have brought a rather curious mish-mash to your Lordships’ House.

On my noble friend’s second amendment, I share his view and am not sure that NHS England is the right body to have a duty to scrutinise the commissioning plans of local authorities. However, I very much agree with my noble friend that it is very important that there is a method of checking on the performance of local authorities in their commissioning of adult social care services. My noble friend mentioned Winterbourne View as an example of where a number of local authorities placed clients but having placed them paid no attention to their experience. That was a salutary warning about the problems of local authority commissioning.

I wonder whether the CQC ought to be the body which undertakes that responsibility. Clause 5 sets out that the local authority is responsible for promoting diversity and quality in provision of services. The local authority clearly has responsibility for ensuring that there are sustainable providers in the market. I also refer my noble friend to Clause 80 which sets out the CQC’s responsibilities in performance assessment and performance ratings. My noble friend will see that under Clause 80(2) the proposed new Clause 46(3) of the Health and Social Care Act 2008 sets out that:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social service provided or commissioned by the authorities as may be prescribed”.

My reading is that the CQC is given powers to do what my noble friend wants. The question—we debated this when we debated Clause 5—is the extent to which the Government are so going to prescribe. I would like to hear from the noble Earl, if possible, that the Government have reflected on our earlier debate and have come to the view that it would be a very good thing to prescribe that all local authorities should have their commissioning performance reviewed by the CQC as a matter of priority.

My noble friend raised the question of Winterbourne View. We debated the problem of the contracts local authorities have set with private providers where they are contracting staff on very low rates of pay. These are the same providers which in some cases are giving 15-minute periods of service, with staff on zero-hour contracts and often having to pay the cost of their travel. I do not believe that those are the right circumstances in which a quality service could be given. That is why I believe that the CQC should prioritise the commissioning responsibilities of local authorities. If it did, it would answer the question posed by my noble friend.

Queen’s Speech

Debate between Lord Hunt of Kings Heath and Lord Mackay of Clashfern

Thursday 10th May 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, the Queen’s Speech contains a number of important constitutional matters. The matter of the royal succession is important and requires to be carefully negotiated with all members of the Commonwealth so that the unity of the Commonwealth, which has been so conspicuous under Her Majesty’s reign, may continue. There are also the proposals on electoral registration. I am disturbed by any suggestion that that should be motivated otherwise than by trying to achieve the fullest possible registration of voters in a proper way. I hope that that would be the motivation of any reform that is put forward. We are faced also with a major constitutional matter in relation to the independence of Scotland and possibly of other parts of the United Kingdom if that should occur. We need to consider those matters with great care.

However, I intend to restrict my remarks specifically to the House of Lords proposals and the proposal to deal with its composition. When William Hague was leader of the Conservative Party, he invited my noble friend Lord Hurd of Westwell and me to consider options for reform of the House of Lords with a view to achieving some kind of consensus. That is now rather a long time ago. I invited, as I was empowered to do, the noble Lord, Lord Richard, and the late Lord Russell to join us, but neither felt able to do so, with Lord Russell explaining that the leadership of his party at the time felt that it might not be desirable. I can well understand those responses because we had been appointed by the leader of the Conservative Party, which had recently suffered a rather severe defeat in the general election. But my noble friend and myself, with the help of Douglas Slater, a clerk here with great experience, considered the various options. The report has been published for a long time and was available to the Government and the Joint Committee, and was no doubt carefully considered.

My central point relates to the relationship between the two Houses. I have no doubt whatever that the primacy of the House of Commons, recognised in taxation particularly since 1671 or so, is founded on the fact that the House of Commons has over the years been elected—no doubt with a rather restricted electorate to start with, but gradually evolving into a general electorate over the whole country. That has given the House of Commons the responsibility, in accordance with the maxim that there can be no taxation without representation, for full control of taxation matters.

Since 1911 and 1949, the House of Commons has also achieved a primary position on general legislation. The true position now is that the elected House can prevent anything going on the statute book with which it does not agree and, after a reasonably short delay, can put on the statute book anything that it steadfastly believes should be there. Sometimes, as we know, as a result of consultations and consideration in this House, it wisely decides not to proceed further, as happened in relation to the process whereby people were detained without any particular procedure being followed. That process was eventually abandoned. However, generally speaking, the House of Commons—the elected House—gets its own way on posited legislation and prevents the enactment of any measure that it does not want. Therefore, I do not see that the undeniable governance difficulties in our country have anything to do with the democratic deficit, as it is sometimes called, whereby ordinary people cannot exert influence through their representatives on the laws which govern them.

The proposal for a fully elected second Chamber requires that the second Chamber, being fully elected, should have democratic accountability and democratic legitimacy. Therefore, I do not see why it should not be given the same authority as the other House, which is directly elected. That seems to me a fundamental point, which is well made by the Joint Committee. I say to the noble Lord, Lord Richard, who is now in his place, that I very much appreciate the clarity of the Joint Committee’s report, which constitutes an important development. The same sentiments apply to the alternative report, which was compiled by members of the same committee. It is not possible to print it as a government paper because of the desire for unanimity by the House of Lords, if possible. However, it was printed using government resources and is available in the Library. It seems somewhat unnecessary to make a distinction in this regard. Indeed, my remarks about the clarity and utility of the main report apply also to the alternative report. We are all extremely grateful to the members of the committee for giving a great deal of their time, effort and expertise to frame the report.

The report records the opinion of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, that the Parliament Acts would not affect the situation if the House of Lords—the second Chamber—became a fully elected Chamber. I firmly agree with that opinion as you have only to read the preamble to the 1911 Act to appreciate that the House of Lords did not operate on a popular basis at that time. I have no doubt that if it were fully elected it would operate on a popular basis, and we would have two fully elected Houses with full democratic mandates, given that we have universal suffrage throughout the nation. The Joint Committee recommended that if this were to happen it would be right to introduce legislation to distinguish clearly between the powers of the two Houses. I entirely agree with that but legislation needs to be based on reason. I see no reason for legislating to restrict the democratic authority of the second House, if it has a full democratic mandate, but to leave untouched the democratic authority of the first House.

[Lord Hunt of Kings Heath]

I am most grateful to the noble and learned Lord for giving way. If you accept the primacy of the Commons as the first base of the constitutional arrangement, it would still be possible to have two elected Houses provided you were able to set out their respective powers. However, inevitably, despite the universal mandate that would arise from the fact that people can vote for the second Chamber, it would none the less still be secondary to the primary Chamber, if it were so ordained through legislation.

[Lord Mackay of Clashfern]

I am saying that the legislation needs to have a reason behind it. It is all very well to legislate, and I know that from time to time we see legislation which some of us think does not have much reason behind it, but on the whole we regard it as rather important that legislation which reaches our statute book should be grounded in reason. If the democratic mandate is the same for both Houses, it is difficult to see a reason for distinguishing between their democratic authority.

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Mackay of Clashfern

Tuesday 13th March 2012 Lords Chamber

[Lord Mackay of Clashfern]

Before the noble Lord sits down, perhaps I may raise two points with him from his great experience of the health service. First, is it appropriate for the fundamental provision to be an amendment to a statutory order rather than for it to be done through primary legislation? Secondly, on delegation, the amendment states that,

“a health care support worker shall be an individual whose work is routinely delegated to them by a registered nurse or midwife”.

Could not a healthcare support worker have an independent assignment from the employer? In other words, it would be not be delegation from a registered nurse but direct employment on that basis. I would like help on that if possible.

[Lord Hunt of Kings Heath]

My Lords, when I was in government, I was always very wary of interventions from the noble and learned Lord when he required help on an answer that I had given. I should probably let the noble Baroness, Lady Emerton, answer for herself, but perhaps I may make two points. First, the noble Baroness has been very inventive in using this Bill as a way of raising these concerns. As a number of clauses, to which we shall come shortly, relate to regulation, her amendment is quite in scope. Secondly, this is very much a debate on the principle. I have no doubt that, if the noble Baroness were to press the amendment to a vote and was successful, the noble Earl, Lord Howe, would come back at Third Reading or in the other place with a tidying-up amendment which dealt with the issues that the noble and learned Lord has raised, respecting the intent of the House but ensuring that the statute was as tight as it could be. It is probably not for me to answer for the noble Baroness.

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Mackay of Clashfern

Tuesday 25th October 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I support the view that this is an extremely important issue. It is also extremely difficult and there is a lot to be done to get this right. I am an honorary fellow of two Scottish medical colleges. The contribution of Scotland to the training of doctors and nurses has to be kept in mind, and many other parts of the world also contribute to our NHS training, particularly at the graduate stage. It makes it extremely difficult to know how to cater for all the possibilities and I wish my noble friend every success in coping with this problem.

[Lord Hunt of Kings Heath]

My Lords, as this is the first day of a new stage of the Bill, I am required to start by declaring my interests. I am chair of the Heart of England NHS Foundation Trust, president of the Royal Society of Public Health, the Fluoridation Society and the Health Care Supply Association, consultant trainer with Cumberlege Connections and member of the advisory council of Easy Care.

The noble Lord, Lord Cotter, put his finger on it when he spoke of concerns about the quality of nursing care in some parts of the NHS. This has led in the past few months to considerable debate about the quality of education and training of nurses and indeed healthcare assistants. We will, of course, be coming back to that issue later in Committee. However, it has served to illustrate the critical importance of education and training of the healthcare workforce, be they doctors, nurses, AHPs or indeed even psychotherapists.

My Amendments 6 and 44 seek to ensure that the Secretary of State exercises leadership and responsibility in this area. This is very important in the context of the Government’s intention to create a much more diverse and disparate healthcare system in the future. It is essential that we protect the integrity of a national approach to professional education and training.

Public Bodies Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Mackay of Clashfern

Wednesday 9th March 2011 Lords Chamber

[Lord Mackay of Clashfern]

I have been privileged to put my name to the amendment and of course I support it wholeheartedly. It makes clear the legal framework within which the ministerial powers under the Bill may be exercised. I thank my right honourable friend Francis Maude for seeing me on this matter and I assure the noble Baroness, Lady Royall, that the consultation right across Whitehall was necessary. That is perhaps one of the reasons why we were not quite as early with this as some of us might have liked. I thank members of the Bill team very much for the patience that they exhibited in listening to me preaching to them about this, in a manner to which your Lordships are accustomed.

[Lord Hunt of Kings Heath]

My Lords, I say to the noble Lord, Lord Lester, that if he continues to table amendments of this quality he will be very welcome to move them after midnight, day after day. I, too, thank him, as this is an important amendment. It provides considerable reassurance to noble Lords about how the Bill will operate when enacted. I am grateful to him; it goes right back to that first vote on day one in Committee, which seems a little time ago. I also thank the noble and learned Lord, Lord Mackay, for his great assistance, and the Bill team and the Minister. This is a very positive outcome.