Consumer Rights Bill
Debate between Lord Knight of Weymouth and Baroness Hayter of Kentish Town
Baroness Hayter of Kentish Town
I move Amendment 50K in this group on behalf of my noble friend Lord Stevenson and I will speak to Amendments 50M and 105A. This is an important and rather different set of amendments. Amendment 50K was tabled because of the increasing use of private or voluntary sector bodies to deliver services that historically were carried out by central or local government. In the UK, we have a long-standing and highly regarded system of ombudsmen for such services—for local or national government—whether provided by the NHS or by local councils, with such ombudsmen being free, independent and easily accessible. Indeed, it is one of the many advantages that users of local government services have, including recipients of social care. Where they have a complaint about any service, they can at a final stage take that to the independent Local Government Ombudsman, who adjudicates on the matter and can award redress if the service was found not to be up to standard. However, it is not clear to everybody whether users of contracted-out or commissioned services have equal access to the relevant ombudsman, so the amendment seeks to clarify this, not least to mandate clear signposting to first-tier complaints systems as well as to the ombudsmen.
There are wider questions about the redress landscape, which the Public Administration Select Committee has described and which Oliver Letwin, I understand, is now about to review. There are issues about the way things work now—for example, with, we hope, increasing and better co-ordination between hospitals and social care and a seamless move between the two. Interestingly enough, if there is a problem on the health side, it goes to one ombudsman, whereas if it is on the social care side, it goes to a completely different ombudsman. On the handover between the two, it can be difficult to know who was at fault. Even if you can identify that, you then have to find which ombudsman is the appropriate one. Luckily—I hope that some people in the Room will excuse me for saying this—both those ombudsmen are women, so they tend to get together and sort it out, but of course that will not always be the case with such organisations. The Committee will understand the problem.
This amendment does not try to solve the particular problem of overlap, but it deals with situations where a public authority contracts out work to a private provider. It aims to ensure that the user still has a clear pathway to the relevant ombudsman. Given that many public services are delivered these days through a range of bodies, it is hard for the consumer to follow the chain of accountability and to know where to turn if a service lets them down. Indeed, people do not always realise that if a local council has contracted out, it is still accountable, even though it may be another organisation that is delivering the service on the council’s behalf. Whoever is delivering publicly funded services, we believe that users should have access to clear, effective complaints processes, as well as the reassurance that in the final analysis they could take their complaint to an independent ombudsman.
Amendment 50K would ensure that the contract between the commissioning authority and the provider requires a proper complaints procedure, in addition to users knowing that they can refer their concern back to the local authority and then to the ombudsman. At the moment, councils always signpost complainants to the Local Government Ombudsman, but this amendment would ensure that all users of public services—we are particularly talking about social care—are equally well informed.
A brief example from the Local Government Ombudsman was where it had to remind councils that they remain responsible for the actions of, for example, care homes with which they work. The LGO undertook an investigation into Merton Council, which was responsible for a contracted private home. That home asked the family of an elderly resident to pay a top-up fee, but in fact the home had no right to that fee. The family happened to contact the council about where the payment should go and it was only then that it came to light that they were not due to pay the fee because the council had paid everything and the care home was not entitled to any more money. Interestingly, that complaint ended up in the right place because it had come to the notice of the local authority. However, in her findings, the Local Government Ombudsman, Dr Jane Martin, found against the local authority, reminding it that the law is clear: the actions of the care provider shall be treated as actions on or on behalf of the council, so the council was responsible for the care home seeking to extract funding from the family. She went on to warn other councils that they are responsible for any contracted activities that are provided. Clearly, not all councils and not all care homes know that and, even more obviously, not all users know it. We want public providers to ensure that all users are clear about their right to go to the independent ombudsman.
In the case of the Parliamentary and Health Service Ombudsman, the health service is already required to signpost patients to the ombudsman. However, that is not the case for government departments, agencies or other bodies, such as the Electoral Commission, the Charity Commission and Monitor, against which complaints can be taken to the Parliamentary and Health Service Ombudsman. If even those bodies do not know, certainly anyone they contract to do their work will not know either. An individual consumer could be applying to find out something from the Charity Commission and have a complaint, but of course they would not be signposted on. If they were involved in any payment, which they could be if it was for a service, they should be covered by this Bill.
The Parliamentary and Health Service Ombudsman knows that, where signposting is inadequate, there is a strange absence of complaints. Research undertaken in 2012 showed that almost half of the inquirers said that they had not been informed about the Parliamentary and Health Service Ombudsman by the service provider. It is interesting to note that the remit of ombudsmen allows them to follow the public pound and therefore review the actions of bodies acting on behalf of the relevant public bodies, but few citizens know that. Under this Bill, where there is any sort of consideration or payment, as there could well be in respect of a day centre or for other services, we want to ensure that people are absolutely clear about their right to go to an ombudsman.
Amendment 50M speaks for itself. It asks the Government to look at how consumers who use contracted-out or commissioned public services are going to get a better deal along the lines provided for in the Bill. The chapter on services is pretty clear. When we have our windows cleaned or a kitchen installed, as we discussed last week, we know our rights. We know from earlier discussions that the Bill is also going to cover public services where there is an element of payment. We will be interested to know how the users of publicly funded but privately provided services will have their rights under this Bill enforced, as well as what independent advice they might be given to help them in this regard.
Finally, Amendment 105A would require statutory regulators to ensure that they develop proper user or consumer representation on their boards, as well as reviewing annually the consumer experience of the industry, including whether they are sufficiently well represented and listened to so that their rights under this and other legislation are protected.
Regulators exist in exactly those industries where the consumer cannot on their own behalf get a fair deal because the industries are effectively monopolies, or because the nature of the service is so complicated and specialised, as in the law, that clients are in no position to evaluate it or shop around, or because it is an essential service, or for some other market failure. Despite this, not all regulators put the consumer, in whose interest they are meant to work, first—sometimes because of industry capture or sometimes because they fail to see the consumer impact as they work at such a helicopter level. However, it is usually because they do not embed the end-users’ views into their decision-making. They decide policy without researching the consumer’s experience or views. They simply do not understand the ordinary person who pays the bill. This amendment would embed the consumer voice into the regulators’ governance, where it should have been from the start. I beg to move.
Lord Knight of Weymouth (Lab)
My Lords, the amendment raises an interesting question, which I thought I should take the opportunity of posing to the Minister. A cursory glance at Hansard from the other place suggests that the Government’s intention is that consumer rights in this legislation should apply to consumers of public services as well as private services, which is what the amendment addresses. The question that arises refers back to the last time I attended this Committee, when we were discussing consumers’ rights in the context of digital.
With normal goods, one has the right to return them and seek a refund or replacement. I am intrigued as to how that would work with some public services. For example, does this apply to the licence fee? If I do not like what I consumed on my television, do I have the right to a refund or replacement? Of course not, but how does that work in the context of the Bill? If I have paid tuition fees and I am not satisfied with the nature of the service that I receive from a university— I hazard a guess that quite a few students might at times have problems with, for example, the amount of access they have to face-to-face tuition—am I considered, in the context of the Bill, to be a consumer with the same rights as I would have in the private sector? I should be interested to know how that plays out. Or do we, as the amendment suggests, rely on the regulator? In which case, is that all pinned down properly in the Bill?