Care Bill [HL]

Lord Patel of Bradford Excerpts

Monday 22nd July 2013 Lords Chamber

Moved by

[Lord Patel of Bradford]

92AY: Clause 52, page 41, line 40, leave out “the Care Quality Commission” and insert “Monitor”

[Lord Patel of Bradford]

My Lords, I shall also speak to Amendment 92AZ. I welcome the aspects of the Bill that are aimed at securing the sustainability of the social care sector and social care provision. It is particularly important to put measures in place setting out the action to be taken to protect people from the negative impacts of business failure in adult social care. However, I have some concerns about the key clauses that relate to provider failure and market oversight. I refer specifically to Clauses 47 to 54, which specify the criteria for the application of market oversight, determine whether criteria apply to a care provider and cover the assessment of financial sustainability of care providers.

Amendment 92AY focuses on the financial regulation of providers. The Bill currently allocates to the Care Quality Commission responsibility for maintaining quality care services, mitigating risk to business sustainability and ensuring continuity of care for any person who receives care services. These steps will include obtaining regular financial and relevant performance information, working with the provider to develop a sustainability plan to manage any risk to the organisation’s ongoing sustainability, using powers to commission an independent business review to help the provider to return to financial stability and requiring information from the provider to enable the CQC to support local authorities to manage provider failure.

I concur with the view that all providers of care and support services should be subject to thorough financial checks which may indicate that a care organisation might be unable to fulfil its obligations as a provider of services in the future. However, plans to allocate responsibility for financial regulation to the CQC appear to be poorly thought through and Monitor, as the current financial regulator for health services, should assume this role. The pressures facing the CQC as part of its expanded remit for regulating quality across the health and social care sectors have already been eloquently highlighted in previous debates on this Bill by many noble Lords, including the noble Lord, Lord Sutherland, and my noble friends Lord Hunt and Lord Campbell-Savours.

We are all aware that the CQC is undergoing significant structural change and it does not have the capacity and organisational expertise to take on responsibility for assessing the financial stability of care providers. This is being proposed because of the belief that service users would benefit from having a single regulator, specifically the CQC, to oversee care and support services and provide an overall assessment of performance, combining quality and financial data. I am also aware that the Francis report highlighted the importance of simplifying the quality and financial regulation regime for health providers to eradicate overlap and minimise the gaps between the functions of the different organisations and regulators. This included changes to the current division of regulatory responsibilities between Monitor and the Care Quality Commission.

However, the noble Lord, Lord Sutherland, in a previous debate, specifically highlighted the key concerns—which I share—about giving the CQC additional responsibilities for financial assessment. He stated, and I agree, that the CQC is not prepared for these additional responsibilities. I would question whether it has the specialist staff, skills, experience and, most importantly, expertise required to decide whether care providers have financial sustainability.

Alongside all the other demands it faces, the CQC will also be pressured into developing a rushed financial accountability system, without proper consultation and checks and balances. These additional responsibilities for financial regulation place added pressure on an organisation that is already undergoing significant change and faces a greatly increased workload as part of its expanded duties for quality assurance. The development of a poor-quality financial accountability system will only affect its credibility further and I therefore question the rationale for designating the CQC as a financial regulator for the care and support sector.

In fact, under the Health and Social Care Act 2012, Monitor became the economic regulator to promote effective and efficient providers of health and care, promote competition, regulate prices and safeguard the continuity of services. Monitor can license providers, work with NHS England to set prices for NHS-funded services, prevent anti-competitive behaviour and work with commissioners to ensure continuity of services when providers get into financial difficulty. I would therefore argue that Monitor already has its own robust financial oversight regime for healthcare providers that can be adapted and applied to the social care sector; and the Government should use these existing powers as a means to effectively regulate the sector in the future. My amendment to Clause 52, on the assessment of financial sustainability of care providers, simply replaces the CQC with Monitor. I hope that the noble Earl will agree that this is a sensible and helpful amendment.

I now turn to Amendment 92AZ on the accountability of commissioners. As many noble Lords have commented throughout the Committee stage, the focus in the Bill on greater integration between health and social care services is to be welcomed. As services between health and social care become more integrated, it is essential that the plans of local authorities face the same levels of scrutiny as clinical commissioning groups and have clear lines of local and national accountability.

However, there is at present no effective regime in place to oversee and monitor the standard of local authorities’ commissioning of care and support services. The annual performance assessments previously undertaken by the Care Quality Commission to evaluate the quality of councils’ commissioning of adult social care services were scrapped in 2010. Of course, the Minister may argue that the scrutiny of commissioning plans is now covered under the provisions of the Health and Social Care Act 2012 and that additional oversight is not therefore required.

I know that that Act contains a number of duties that focus on aligning the plans of clinical commissioning groups and health and well-being boards to ensure that clinical commissioning groups take into account the joint strategic needs assessments when preparing their commissioning plans. Equally, I am also aware that health and well-being boards are expected to have a key role in bringing together local authorities, clinical commissioning groups and local Healthwatch to assess the health and care needs of local populations through joint strategic needs assessments and joint health and well-being strategies.

However, recent cases such as those at Winterbourne View and Southern Cross have demonstrated the devastating impact on vulnerable people when commissioners, commissioning systems and processes are found wanting. Winterbourne View was set up as an assessment, treatment and rehabilitation centre for people with learning disabilities and autism, but the review into Winterbourne View found that it had “strayed far” from this purpose and stated that the commissioners, as well as the owners, Castlebeck, were to blame for this. The primary care trust commissioners who placed people at Winterbourne View did not set performance targets for the company or effectively check the progress of patients, despite being charged an average of £3,500 a week for places. Their reviews were clearly flawed, completely ineffective and did not bring to light either concerns about the quality of assessment and treatment or the detail of abusive practices. Strategic health authorities also did not effectively performance-manage primary care trusts in their commissioning of placements for this client group. The review concluded that closed establishments such as Winterbourne View would benefit from a more prescriptive approach. This includes far more effective planning processes, and performance management and monitoring systems by commissioners.

That is why I am proposing a new clause that focuses on the accountability of commissioning organisations that would give NHS England a duty to scrutinise the commissioning plans of local authorities for adult social care services to ensure that they are upholding the safety and care of vulnerable people, and the efficient and effective operation of a market. Equally, notwithstanding my previous comments, I would be content if the noble Earl thought that the CQC rather than NHS England would be able to provide that scrutiny. I beg to move.

[Lord Warner]

My Lords, I intervene briefly to make a couple of observations and put a question to the Minister on this set of amendments. I must confess that I am not thrilled by the idea of NHS England being asked to supervise the commissioning of local authorities. I think that it may struggle to supervise the commissioning of 211 clinical commissioning groups, or however many we have this week, without our turning it loose on 152 local authorities as well. There must be some doubts about whether it is the right body to supervise local authority commissioning.

My noble friend Lord Patel of Bradford makes a very fair point in asking where we will get some sort of overview of the quality of local authority commissioning. It may not be NHS England, but we could perhaps have some idea of the Government’s thinking on how they will be satisfied that the commissioning is of a reasonable standard across 152 local authorities. If the Minister could tell us this evening which quality assurance mechanism the Government have in mind, that would be a useful insight.

The other point was about whether it should be Monitor rather than the CQC. This is an area where I have struggled quite a lot, because I think that there is a problem with what is going on with the financing of adult social care. Who actually bankrolls the providers in this sector? I question whether, without a lot more expertise, either Monitor or CQC are well placed to penetrate some of the private equity models of financing adult social care provision. These models are being brought in almost as we speak.

The financial complexities of this sector are very considerable. The providers of residential and nursing home care within the adult social care sector have moved on a long way since my days in local government as a director of social services. People are assembling packages of money to buy groups of homes, and they put groups of homes together in what is often basically a hedge fund or private equity-type process, essentially consolidating providers in this sector. The days of mom and pop homes seem to be passing quite quickly, as the sector tries to secure greater financial capability to respond to the buffets of a market system.

In this extraordinarily complicated market, it is not clear to me how the Government will equip any regulator—or help it equip itself—to secure the expertise to actually raise the money to buy and merge groups of residential and nursing home providers. It is not a very transparent system. Either CQC or Monitor will require a lot of expertise. It will have to go into territory into which few of us are equipped to go, and find out what is actually going on, if we are not to have another Southern Cross experience.

I suggest that the risks of that happening again are becoming greater as the funding systems for these organisations become less transparent. They are not publicly quoted companies, and in many cases they are hidden behind a rather mysterious cloak of financial allocations. Without making adverse comments, I suggest we look at what happened with Four Seasons, which was taken over by Terra Firma. Where are the loyalties? Are the loyalties of that organisation to the people receiving care, or are they to the people who are creating the funds for the purchase of that organisation? I would like some reassurance that CQC or Monitor—I do not feel strongly doctrinal, one way or the other—will have the expertise to penetrate some of these rather opaque organisations that are now involved in funding providers in this sector.

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[Earl Howe]

The noble Lord is absolutely right. We are entirely open to looking at the lessons to be drawn from other sectors and the regulators of other sectors. I am sure that important messages will come from such sectors of the kind the noble Lord describes—no doubt not just the energy and water sectors but others, too.

I will move on to the question of whether there should be central oversight of local authority commissioning practices. I wholeheartedly agree with many of the arguments that have been expressed this evening. Commissioning practices which risk undermining personal dignity and lowering quality are simply not acceptable. That is why Clause 5 of the Bill introduces a duty on local authorities to shape high-quality, diverse and sustainable markets in care and support services. Clause 5(4) requires local authorities to have regard to this duty when commissioning services. As I said when the Committee discussed Clause 5, we are aware that there are examples of poor commissioning practice across the country. We need to move away from overly prescriptive commissioning that focuses only on price or time slots, to consider how it can do things differently and deliver better outcomes in quality care.

In relation to the option of central oversight of local authority commissioning that the noble Lord, Lord Patel of Bradford, suggested, the Bill leaves open the possibility of the CQC conducting reviews of local authority commissioning. However, by enabling the CQC to review local authority commissioning, if it is prescribed in regulations, the Bill gives us the opportunity to discuss this option further. In particular, we are considering whether the new chief inspector, who will work with local authorities that commission care and support, should have a formal role in assuring the performance of those authorities, building on the strength of the current programme of improvement activity and peer assurance led by councils.

I emphasise at this stage that if there is to be central oversight of commissioning, the CQC, as a consequence of its links with the chief inspector and its existing relationships with, and expertise in, the social care sector, will be the most appropriate body to undertake this function. Although we have not closed our minds to the option of central oversight of local authority commissioning, the fundamental problems underlying poor commissioning practices are cultural and structural. Central oversight on its own will not necessarily tackle these issues.

The noble Lord, Lord Warner, asked how we could be satisfied that local authorities’ commissioning will be of a suitable quality. It goes without saying that it is for local authorities to decide the most appropriate way for them to fulfil their duty of commissioning and of shaping local markets, responding to local needs and circumstances. They will be accountable locally for those decisions. However, we are working with local authorities to support them to develop their capacity to shape local markets. We launched a programme of support last year and intend to continue working with local authorities to improve commissioning practices. We are committed to working with the sector to support local authorities to shape diverse and high-quality markets, including through improving commissioning practices, through the recently announced homecare challenge and through a programme to support the authorities in their market-shaping capacity.

In conclusion, I fully understand and sympathise with the issues raised by the two amendments. However, I hope that I have been able to shed some light on why the Government have come to their view on the issues. In so doing, I hope that I have provided a measure of reassurance to the noble Lord, Lord Patel of Bradford.

[Lord Patel of Bradford]

My Lords, I thank the Minister for his detailed response. On the first amendment, which deals with financial regulations, he singled out three issues that were relevant to why the CQC was chosen: having a single regulator, better relationships with local authorities and better relationships with commissioners. That goes some way towards reassuring me, but I still feel, coming back to the comments of my noble friend Lord Warner, that this is not necessarily about relationships and capacity but about the expertise and skills required in a very complex financial arena. That is the key.

If I were naive, we lived in an ideal world and I was providing care homes, and either my accountant was not very good and I did not know that I was going bankrupt or I wanted to carry on and would do everything possible to keep the company running, regardless of my relationship with the CQC, that is where somebody with the real financial expertise required in this day and age could come in and spot what was happening. I am not 100% reassured that the CQC will have that capacity or expertise. I suppose that I recognise that Monitor does not understand the social care sector as well but it has the financial expertise that I think is invaluable. I may want to return to this issue again and to have a further discussion about it.

However, I am far more reassured by the response that the noble Earl has given me on central commissioning. I suppose that I stipulated NHS England in the amendment because I could not think of another body. Having said that the CQC does not have the capacity to do this, I could not say that the CQC should be doing it. However, I am reassured that the potential is there for central oversight through regulations and other areas. In the mean time, I beg leave to withdraw the amendment.

Amendment 92AY withdrawn.

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[Lord Patel of Bradford]

My Lords, I have put my name to Amendment 94 in the name of the noble Lord, Lord Patel. I do not think that I can add to the detailed and clear exposition that the noble Lord has provided. I know that the amendment is slightly lengthy, but it is also very logical and clear—I understood it very clearly, so that is a bonus. I welcome the intention behind Clauses 55 to 63, which enable parents and young people to request a child’s needs assessment. Clause 56, on requirement’s for a child’s need assessment, states:

“A child’s needs assessment must include an assessment of … (a) the outcomes that the child wishes to achieve in day-to-day life”.

What is the intention behind “outcomes”? What outcomes are we looking at?

[Lord Hunt of Kings Heath]

My Lords, it was remiss of me not to declare an interest during our debate today as president-elect of GS1, chair of a foundation trust and consultant trainer with Cumberlege Connections.

Perhaps I, too, may raise the connection of this Bill with the Children and Families Bill. As my noble friend Lord Warner said, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting the framework for children and young people up to the age of 25, there is a clear overlap in their jurisdiction in the context of social care provision. Education, health and care plans under the Children and Families Bill also include an assessment of a child or young person’s social care needs, which means that young people between the ages of 18 and 25 may be eligible both for an EHC plan and an adult care and support plan. That seems to reinforce my noble friend Lord Warner’s comments.

My understanding—perhaps the Minister could confirm this—is that the Government are considering bringing forward amendments to the Children and Families Bill to make sure that the two link together. If that is so, the problem that we have is that the Children and Families Bill will not go into Grand Committee until we come back in October, whereas this Bill should have cleared the House by about the fourth week in October. It would be very disappointing if we, in debating this Bill, were not able to see the changes that the Government were going to make to the Children and Families Bill so that we could make sure from our perspective that the two hung together. Can the Minister assure us that, if the Government are contemplating some amendments, we could see them so that we could debate them within the context of this Bill?