Health Service Commissioner for England (Complaint Handling) Bill

David Nuttall Excerpts

Friday 27th February 2015 Commons Chamber

[Mr Arbuthnot]

May I begin by congratulating my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on getting the Bill through Second Reading without any discussion whatsoever, then through Committee without any amendment and now on Report? On Tuesday, in the Committee deliberating on the National Health Service (Amended Duties and Powers) Bill, during which hon. Members had the misfortune of having to listen to me speak for a little longer than normal, I said that in 28 years in this House I have never had a private Member’s Bill, so my right hon. Friend’s achievement is considerable.

[Mr David Nuttall (Bury North) (Con)]

As one of those who had the good fortune of being able to listen to my right hon. Friend’s speech on Tuesday, I can assure him that it was no difficulty at all—it was very illuminating.

[Mr Arbuthnot]

Given that I spoke for four and a quarter hours, my hon. Friend is very kind to make that generous observation, but I am not sure that I share his view.

Over my political life I have often been asked what I would choose for a private Member’s Bill. In my early political life I would usually say something frightfully worthy, such as bringing in a Bill to improve the national health service. In my later political life, as my cynicism has grown, I have said that I would bring in a private Member’s Bill to abolish private Members’ Bills.

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[Mr Arbuthnot]

Eric Forth was a friend both of my right hon. Friend and of mine. My understanding of his view was that all legislation was a bad thing, which is why, even when he was in government, he was in opposition, and would try to stop virtually everything. That caused some difficulties to me when I was the Opposition Chief Whip.

Every year I have put my name into the private Members’ Bill ballot and have dreaded the thought that it might, one of these days, come out. Luckily, it never has and now it never will. As my right hon. Friend says, there is a dilemma for someone who chooses a private Member’s Bill as to whether to choose something that is small and uncontroversial that Eric Forth might have allowed through, or large and making a great statement but bound to fail. It is rare indeed that a private Member’s Bill makes only a small change but in that small change he or she achieves something of great importance.

I suspect that my right hon. Friend’s Bill may be just such a Bill. I congratulate him on spotting so small a change that might be needed and then on bringing forward a measure that does something about it. I have read the proceedings of the Committee, which lasted for roughly half an hour. My right hon. Friend said that he was comparatively inexperienced in these matters, since the last Bill he piloted through the House of Commons was the Intelligence Services Bill in 1994. It is interesting and unusual to think of my right hon. Friend as a comparative novice at anything, but for a novice he seems to have done pretty well. Not many of us have our own legislative programme, so I congratulate him again.

In order to explain the purpose of my amendments, I need to start by setting out the purpose of my right hon. Friend’s the Bill in a way that, I hope, will not offend him and that will do justice to its importance. The effect of his Bill, as I understand it—he will put me right if I am wrong—is to ensure that if a complaint has not been resolved within 12 months of its receipt, the health service ombudsman will send the complainant a statement explaining why there has been a delay.

[Mr Nuttall]

My right hon. Friend has just referred to the ombudsman. Does he agree that one of the problems with legislation is that it is very often unintelligible to people outside this House? The Bill is called the Health Service Commissioner for England (Complaint Handling) Bill. Does he not think it would be beneficial if it was referred to as the Health Service Ombudsman for England (Complaint Handling) Bill?

[Mr Arbuthnot]

I like my hon. Friend’s suggestion. In Committee on Tuesday, he and I discussed the value of having legislation that is comprehensible to the people whom it affects, and this Bill will affect everyone in the country. The laws we make should not be written in gobbledegook that is not comprehensible to the people who own and enforce the law and who have it enforced upon them. It would be an improvement if the legislation referred to an ombudsman, because that is what everybody calls them, so I hugely support my hon. Friend’s suggestion.

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[Mr Arbuthnot]

I have to say that I find that argument extremely persuasive. However, it is reasonable for the ombudsman to give some idea of how long an investigation is expected to take. After all, it is only an estimate, not a hard and fast guarantee. I accept that the estimate may turn out to be woefully wrong—I think my right hon. Friend was referring to the Sam Morrish case, a huge tragedy that was highlighted in Committee by all parties—but I am just suggesting that it would be helpful to give an estimate. People may be put off complaining if they do not know what will happen, and they will be less frustrated if they are kept informed during an investigation.

[Mr Nuttall]

My right hon. Friend says that complainants will be less concerned if they are kept informed during the progress of an investigation, but on my reading of his new clause 2, there is no requirement on the commissioner to keep them informed, merely to give them an estimate of the period of the investigation at its outset.

[Mr Arbuthnot]

My hon. Friend has spotted a deep lacuna in my new clause, of which I am conscious. He is quite right, as I would expect of someone with his forensic skills. There is not, however, any need for legislation, in the way my hon. Friend suggests, to require the ombudsman to keep the complainant informed because, as far as I can tell, the ombudsman already does her best to keep complainants informed. In relation to the changes that the ombudsman is making in modernising the ombudsman process, which we will no doubt discuss on Third Reading, she is going out of her way to start a public consultation to ensure that the changes are as friendly to the public as possible.

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[Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)]

I will give a brief response on the two proposals of the right hon. Member for North East Hampshire (Mr Arbuthnot) in new clauses 1 and 2. On Third Reading we will perhaps talk at greater length about the merits of the Bill and why it is important that we are here today. I acknowledge that these are intended to be probing amendments to provoke discussion and debate.

New clause 2 is important. We know from many of our constituents who are going through this process that it often comes at a difficult time. Any more information that they can receive about how long they should expect to wait would be helpful. We are all familiar with the card that the ombudsman already provides to us on receipt of our applications to them, so any further information that we could provide to our constituents about how long they should expect to wait would be helpful.

I see no problem with new clause 2, which seeks to provide a complainant, at the outset of an investigation, with

“an estimate of the period within which the investigation is likely to be completed.”

The key point is that it is an estimate. My only concern, although I acknowledge that the overwhelming majority of cases are completed within a year, is that we must manage the expectations of anyone who submits a complaint to the ombudsman. I reiterate that cases often come at a difficult time for people, and the concern is about complainants having to wait for months beyond the time set out by the ombudsman.

We will talk more on Third Reading about why a complaint might be brought, but we often support constituents at a time when they have had a loss or gone through a difficult medical procedure, and we know that it is important to manage expectations. Anything that we can do to provide assurance will be positive, but I do not want any period that the health service commissioner sets out to give people a false sense of security that they will receive a response within a certain time, when it could be many months after that.

I look forward to the Minister’s response, but I do not think there is much to take issue with in new clause 2 if the right hon. Member for North East Hampshire decides to press it to a Division. As I said, my only concern is about the broader provision of information to the public. I would not want to place on the health service commissioner too onerous a duty to provide a wide audience with expectations of when complaints might be responded to. We know from the commissioner that there is already an expectation that complaints will be responded to within 12 months, which is helpful, but new clause 2 would help to give people who are bringing a complaint some expectation of when it might be responded to.

[Mr Nuttall]

It is always a pleasure to follow the shadow Minister, whose remarks were pithy and straight to the point. I will try to be equally pithy in dealing with these short new clauses. I am grateful to my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) for tabling them, because they give us an opportunity to consider whether it is appropriate to include in the Bill a requirement for information to be provided to the public in general, and a complainant in particular.

New clause 1 states:

“The Health Service Commissioner shall make available to anyone considering making a complaint, an estimate of the period within which investigations are to be completed.”

Frankly, I wonder whether there is any need for the new clause. I do not want to pour cold water on my right hon. Friend’s attempts to improve the Bill, which I know are well intended, but I wonder whether he is aware of any occasion when someone has approached the commissioner and said, “I am thinking of making a complaint. Can you tell me how long you think it might be?”, and the commissioner has said, “I’m sorry, I can’t tell you that. We’re not going to tell you.” If there are a lot of people in that position, I agree that we need to address it in legislation, but I have certainly never had anybody approach me and say, “I was thinking of making a complaint, but they won’t tell me how long it will take.” I am not sure that there is a particular problem that we need to address, but I am sure that my right hon. Friend will enlighten us about that.

[Mr Arbuthnot]

I have to say that I have received no information from anyone who has had such an experience. My suspicion is that if one went to the ombudsman and asked, “How long is this likely to take?”, the ombudsman would say, “If you look at our last report, you will see that 99% of our cases were concluded within a year, so you can expect something roughly like that.” New clause 1 is merely an attempt at transparency.

[Mr Nuttall]

I am grateful to my right hon. Friend for that intervention, which leads me directly on to my second point. I suspect that if the commissioner is approached by a member of the public, or indeed by a prospective complainant who has it more immediately in mind to make a complaint, all that will happen is that the commissioner will say, “Without a lot more information about the nature of your complaint, I can do no more than look at our history of dealing with complaints. If you look in the annual report or consult our website, you will see that 99% of cases are concluded within a year; to put it another way, there is one chance in 100 that your complaint may still be outstanding after one year.” Of course, that does not give the whole picture, because the ombudsman’s annual report states that it was able to conclude 67% of cases within one month. Therefore, two out of three cases are dealt with relatively speedily, which is probably as good as one would expect to find anywhere. Few complainants would expect their complaint to be dealt with faster than that.

[Mr Arbuthnot]

My hon. Friend is right to say that there is a one-in-100 chance of a complaint taking more than a year to be dealt with, but I should perhaps have said that there are only about three chances in 100 of a complaint being dealt with at all, because so many of them are outside the scope of what the ombudsman can look into in the first place.

[Mr Nuttall]

That is right, and it prompts a question about whether some advantage is to be gained by the commissioner providing more help at the initial stages to try to signpost people. Indeed, the annual report states that the ombudsman receives about 40,000 contacts a year, including queries about where and how to complain about public and non-public services. Of those 40,000 contacts, 27,566 were inquiries for the commissioner, which demonstrates that many members of the public will quite innocently contact the commissioner about matters that do not fall within her responsibilities.

[Mr Christopher Chope (Christchurch) (Con)]

Does that show that new clause 1 is ill conceived? It states that before people make a complaint they must get an estimate of how long it is likely to take to resolve it. However, the bigger issue for people before they make a complaint is what the chances are of it being accepted for investigation.

[Mr Nuttall]

My hon. Friend makes a good point. People may assume that they have simply to make a complaint for it to be followed up, but as statistics from the commissioner’s report show, that is not the case. Many complainants would presumably like someone to deal with their complaint, but are disappointed at the outset before they have even got going, and are told, “I’m sorry; you’ve come to the wrong person.” It may be that there is nobody to deal with that complaint, and the complainant is sent off to look elsewhere.

I have one further point on the detail of new clause 1. If the commissioner was expected to make a more accurate assessment of the time within which the complaint is likely to be completed, she would have to find out much more detail about the nature of the complaint. That would obviously entail more work for her and her staff. It is the law of unintended consequences: we may find that imposing more obligations and burdens on the staff of the ombudsman’s office, in an attempt to be helpful, extends the length of time it takes for a complaint to be resolved, because staff will be engaged in assessing how long it would take to deal with a new complaint, rather than getting on with dealing with complaints. That is a problem.

I accept that all these matters could be dealt with by providing extra resources. We have not really addressed that point so far this morning; it is the elephant in the room. I do not think this is outside the scope of the new clause. If we impose, or even just set out, an expectation on the commissioner to follow this provision, there will be implications for the deployment of resources. The commissioner could rightly say, “Well, it is all very well expecting me to give an estimate to every member of the public who approaches my office of how long their case will take, but where are the extra resources?” That would be a legitimate question to ask. Otherwise, the commissioner is likely to say that complaints might take about a year, which would probably not be very helpful to most prospective complainants.

New clause 2 relates to complainants who, perhaps having looked at the website, have decided that regardless of the length of time it will take, they will make a complaint. The new clause states:

“The Health Service Commissioner shall make available to the complainant, at the outset of an investigation, an estimate of the period within which the investigation is likely to be completed.”

That implies that initial details have already been taken. I would expect this to be rather more specific advice than that provided to a member of the public. This is someone who has lodged a specific complaint, which the commissioner has accepted. It is a small point, and I have not bothered tabling an amendment to new clause 2, but I would prefer it to read, “The health service commissioner shall give the complainant, within 14 days of the outset of an investigation, an estimate of the period in which the investigation is likely to be completed.” I would have tried to tighten it up a little bit, but I nevertheless accept that that is the wording put forward by my right hon. Friend.

I raised a point about providing updates. My right hon. Friend’s response was that there was no need to legislate on that, because he felt that the commissioner was providing updates anyway. If she is, I could use the same argument about new clauses 1 and 2. If we have no evidence—no one has been able to provide any—that this is a problem, either for members of the public, in respect of new clause 1, or for specific complainants, in respect of new clause 2, I have to question whether these new clauses are required at all. On balance—I accept that it is a fine balance—I do not think that they are required, and should he press either new clause to a Division, I would vote against it, but only because, as he has said himself about legislation to provide updates, there is no need for legislation to require the commissioner to provide this information to the public or a specific complainant.

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[Mr Arbuthnot]

My hon. Friend the Member for Christchurch (Mr Chope) suggests that I might like to address amendments 1 and 2. During the last debate, my hon. Friend the Member for Bury North (Mr Nuttall) pointed out that I was not suggesting that the health service ombudsman should keep the complainants properly informed and I said that I was persuaded that it was not actually necessary to do so. What I should have said was that I had proposed an amendment to do so in the next group of amendments, but during the course of that debate I persuaded myself out of the value of amendments 1 and 2 so I think it would be best for me simply to sit down and not move them. What my hon. Friend the Minister and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) said in answer to that debate satisfied me that more detailed legislation for the ombudsman, apart from the extent to which my right hon. Friend wishes to change the law, is probably not helpful.

In answer to my hon. Friend the Member for Christchurch, I do not agree with the rather rigid approach that his new clause 3 might introduce. Inevitably, there will be some complaints that are so complicated and in which so many people are involved in answering the issues that it would be a bad idea to place on to the ombudsman a duty that, with the best will in the world, they might simply not be able to fulfil. During the course of the morning I have been looking for a quotation from Idi Amin, referring to someone who had displeased him. He said, “When we catch him, he will be executed. He will have a trial, of course, but by trial I do not mean one of those things that goes on all day.” I think that that is the approach favoured by my hon. Friend in the new clause. I hope that he will forgive me if I do not support his new clause and fail to move my amendments.

[Mr Nuttall]

I do not intend to detain the House for long on this group of amendments. Suffice it to say that I think there is merit in new clause 3, to the extent that it concentrates the mind of the ombudsman. At the moment, there is simply a requirement to report and that is the end of it. If nothing seems to be done, it just carries on. My concern is that the whole object of the Bill is to stop the situation that occurred in the case that led to its introduction, in which an investigation carried on for the best part of two and half years. As I read the Bill, it seems to me that there would be nothing to stop that happening again. A case could be reported as being outstanding in the annual report at the end of year one, and at the end of year two it could still be outstanding and nobody other than the complainant and the ombudsman’s staff would know anything about it.

Amendment 3 places a requirement on the commissioner to notify the complainant before the end of the period and again that seems to me to be eminently reasonable. Given that the purpose of the Bill is to try to get things dealt with within 12 months, it seems sensible that if it is apparent to the commissioner that that will not be the case, they should inform the complainant before the end of the period. Otherwise, quite legitimately, the complainant will expect the result at the end of those 12 months if they have not heard anything. It is pretty sensible to expect that. Whether that would happen anyway remains to be seen.

Amendment 4 would require the commissioner to provide at the same time an estimate of the target date for completing the investigation, which seems very sensible. The commissioner would say, “Look, we’ve not quite managed to do it in 12 months, but we certainly will in another three.” I see no reason why that should not be set out in the Bill.

I am pleased that my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) decided not to proceed with amendment 1, which relates to keeping complainants informed, as we dealt with that in the previous group. Everyone agreed that that was not a matter for legislation but should happen anyway as a matter of good practice.

I am rather less happy that my right hon. Friend has decided not to proceed with amendment 2, which would insert after subsection (4A)(b) the words

“the reasons for each of those delays”.

The general report, as set out in subsection (4)(a), should include details of how long investigations concluded in the year to which the report relates took to be concluded and how many of them took more than 12 months. That means giving a stark figure, for example saying, “We had 30 investigations outstanding at the end of the year.” It seems sensible also to require the reasons to be included. That would allow us to drill down and find out exactly what is causing the delays.

That leads me neatly to amendment 5, which stands in the name of my hon. Friend the Member for Christchurch (Mr Chope). It would insert the following provision:

“If the reason for the delay specified in Section 2HA is lack of financial resources it shall be the duty of the Commissioner to set out the action which is being taken to remedy that lack of financial resource.”

I am reluctant to support that. In my humble opinion, it is almost certain that any public official will reach the conclusion that what they really need to make their job easier and speed up the service they provide to the public is more resources. Unless we expect them to start having jumble sales and raffles—we have all tried using our own resources in that way to raise more funds—really the only thing they can do is come to Parliament and—

[Jacob Rees-Mogg]

My hon. Friend makes an absolutely brilliant and incisive point, because has not the whole lesson of the past five years been that public services have been able to deliver more with less? That should also be true of ombudsmen, and therefore the amendment is otiose.

[Mr Nuttall]

I am grateful to my hon. Friend. That has indeed been the lesson of the past five years, and we have seen some sparkling examples of people in the public sector doing more with less—our police service, for example. The same is true of the ombudsman. They have said that they have lowered the threshold and changed the way they work in order to try to meet demand so that fewer inquiries from the public are turned away.

[Jacob Rees-Mogg]

It occurs to me that that allows me to say that that is all thanks to our long-term economic plan—the first time I have managed to get those words into Hansard.

[Mr Nuttall]

My hon. Friend has achieved his wish.

I think that what is set out in amendment 5 would fall into a set pattern, with the commissioner saying every year, “Well, if you gave us a bit more money, we’d have a few more staff and things would get better.”

[Mr Chope]

With the greatest respect, I think that my hon. Friend misunderstands the amendment. The idea is to increase transparency so that rather than the commissioner being able to complain sotto voce that this is all because they do not have enough money, that would have to be brought into the open, and then the very points that he and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) have been making about the ability of many public sector organisations to get a lot more bang for their buck could be exposed to public debate.

[Mr Nuttall]

I am grateful to my hon. Friend for that clarification. He suggests that the amendment is purely about transparency, which means it has more merit than I had accorded it.

[Mr David Davis]

Following that point from my hon. Friend the Member for Christchurch (Mr Chope), I think there is a risk that the amendment would transform the role of the Public Administration Committee, which currently provides oversight and acts as the guardian of ombudsmen, turning it into a champion for more money. I think that would be quite dangerous. I do not want to see the Committee go from being a regulator, comptroller and holder-to-account to a champion for more money.

[Mr Nuttall]

I am grateful to my right hon. Friend for that point, which I suspect adds weight to my opposition to amendment 5. I appreciate what my hon. Friend the Member for Christchurch has said about transparency, but I suspect that in press releases and in evidence given before the Committee the ombudsman would be able to do that anyway. When questioned about the reasons for delays, they would feel that they could easily say whether it was down to resources, either in public utterances to the media or more formally in evidence to the Committee.

[Mr Davis]

I started off being flattered by the suggestion from my hon. Friend the Member for Christchurch (Mr Chope) that I had been in some way seduced into mitigating the Bill, but I think that I am far beyond the point at which seduction, either metaphorical or real, is an option. Perhaps that is why, when it comes to new clause 3, which I think is the most substantive amendment in the group, I am not as much of an expert as the hon. Member for Ealing North (Stephen Pound) and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) appear to be on the subject of corsets. As I understand it, corsets constrict things at one point and let them out at another. The risk in new clause 3 is that it would put such constraints on the ombudsman that problems would be created elsewhere.

There have been two problems with the operation of the ombudsman over the past few years: not meeting timetables and making mistakes. On a number of occasions the ombudsman has got things wrong, which has made things even more acutely painful for the people seeking help and support, because the ombudsman has had to go back and correct mistakes. Indeed, that happened on a number of occasions in the very case that is at the centre of this piece of legislation. Were we to go down this route, we might create a series of problems arising from the ombudsman making erroneous recommendations and proposals, which would of course lead to the issues being multiplied down the generations, rather than dealt with straightaway.

We must also remember that some of the issues that the ombudsman deals with not only require information from other Departments and other parts of Government, but sometimes involve contested arguments and may have legal liability associated with them, so we should not forget that there is a natural justice aspect to this. Finally, these issues are very often on the edge of science. The sepsis problem was one such issue, for which the medical profession is still seeking new solutions. We should be wary of going so far on this that we cause another set of problems. That is why I think the Bill as printed strikes the right balance.

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[Mr Arbuthnot]

rose—

[Mr Nuttall]

rose—

[Madam Deputy Speaker (Dame Dawn Primarolo)]

I call Mr David Arbuthnot. I’m sorry—James.

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[Mr Nuttall]

There is a haulage contractor in my part of the world who bears the name James Nuttall. I am sure that he will be flattered that his name has been mentioned.

I congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on piloting the Bill through to Third Reading. Although he came 19th in the ballot, had the draw been done in the traditional way, he would have come second and piloted the European Union (Referendum) Bill, which would have been a slightly weightier task.

[Mr David Davis]

Weightier and more futile!

[Mr Nuttall]

Yes, I am afraid so. That Bill is not going to reach the statute book.

I hope that this Bill does reach the statute book. It is a short Bill. As the promoter said, it is simple and straightforward. It aims to set a clear target for the ombudsman to operate within. When the target cannot be met, it requires that reasons be given.

As was mentioned at the outset this morning, this is the first time the Bill has been debated on the Floor of the House. The exploration of the matters that were raised on Report was therefore useful, because it teased out matters that could usefully be considered in the forthcoming review and examination of the ombudsman’s procedures. I am sure that those who conduct the review will read this debate and reflect on those matters.

I wish the Bill well this morning. I am sure that it will receive a Third Reading. I also wish it a speedy passage through the other place in the days that remain before the Dissolution of this Parliament.