Clause 5 - Promoting diversity and quality in provision of services

Care Bill [Lords] – in a Public Bill Committee am 8:55 am ar 14 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People) 8:55, 14 Ionawr 2014

I beg to move amendment 80, in clause 5, page 5, line 40, at end insert—

‘(g) the importance of ensuring independent and effective advocacy services from those with the relevant skills.’.

I am sure that we are all delighted to be back here today, Mr Rosindell. We hope to make swift progress this morning so that we can get to the heart of the Bill, which is eligibility criteria and the longer-term reforms to social care funding. The amendment aims to ensure that when councils look to provide high quality, diverse services, they also bear in mind the importance of high quality independent advocacy and support. In the other place, the Government recognised the need for advocacy support and put it in the Bill. That is really welcome. As the Minister will know, the care system is incredibly complicated and having a good, independent advocate helps people make sense of it.

One of the issues raised with us by organisations that work with older and disabled people is that, although the requirement for that independent advocacy and support is now in the Bill, they are concerned about how it will be available on the ground. Will care organisations get the support and, dare I say it, funding from local councils to make sure that those advisers are available? At the moment, the clause talks about the framework for good quality services and support but it does not include independent advocates. The amendment would make it clear that good quality service cannot be delivered without that independent advocacy.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I join the shadow Minister, Mr Rosindell, in saying how thrilled I am to be back here with this group of friends, if I can put it that way, for another delightful session. The shadow Minister should not look so mean spirited.

I should like to digress briefly to say something more broadly about advocacy, which is strictly related to the amendment, I hasten to add. We will discuss the issue in more detail later but I wanted to mention the point that the hon. Lady made about the Government amendment in the Lords. Clause 68 places a duty on local authorities in certain specified circumstances to arrange an independent advocate to be available during processes such as  assessments to facilitate the involvement of an adult or carer. This represents a significant step forward in supporting people who have particular difficulties in being fully involved in the process of meeting their care and support needs. It has been particularly well received both in discussion in the House of Lords but also more widely in the voluntary sector. I am grateful to the shadow Minister for acknowledging that in a very generous way this morning.

When the case was made, I took the view that it was overwhelming and that we should be willing to amend the Bill accordingly. In tabling the amendment, the shadow Ministers reflect the importance of ensuring that people have access to effective and independent advocacy services when considering how their care needs can best be met. The amendment would mean that local authorities should consider advocacy services when fulfilling their duty to shape local care markets. It is important that local authorities shape a market in which a wide range of services can come together to provide a truly holistic approach to health care and support needs that puts people’s needs and experience at the centre of how services are organised and delivered. I strongly believe that access to effective advocacy services is critical for many people as they consider how their care needs can best be met.

Clause 8 already explicitly includes information, advice and advocacy services as examples of types of service that may be provided to meet people’s needs. It is therefore clear that, when providing a duty to shape local care markets of services to meet care and support needs under clause 5, local authorities will have to consider advocacy services alongside all other types of service.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

I understand the case that the Minister makes. If a council wants to shape an effective and diverse market, it would want to ask users and families what they think about existing services. However an independent advocate might have a very good idea of whether the right kind of market in services is out there. That is partly why we tabled an amendment to this clause: not just so that councils should have advocates to help users and families, but to make sure that they are involved and give their views about whether the market is delivering for the people to whom they are providing advocacy. That is my key point.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I absolutely agree. Councils should ask advocates and others for their opinions as they seek to shape their view of the local market and produce their statement of the market and so forth. That is not actually what the amendment seeks to do. I make that point gently to the shadow Minister, but I absolutely agree that it makes sense that their views should be taken on board and they should be properly consulted.

I can assure the Committee that we will make clear in guidance the importance of making sure that people can access effective advocacy services to ensure their continuing well-being, and that advocacy services form part of the wider set of services that local authorities should consider when shaping local markets. I think that the guidance will reinforce the point that the shadow Minister seeks to make in the amendment. I therefore reassure shadow Ministers that the Government understand  the purpose of the amendment, but I hope that I have demonstrated that the Bill already achieves those intentions. I hope that they will agree to withdraw the amendment.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

I am grateful for that response. If the Minister can make sure that the guidance to authorities on shaping the market includes asking independent advocates, as well as users and families, what they think about it and involve them in shaping those services, I would be happy to withdraw the amendment.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I will seek to ensure that the guidance achieves exactly that.

Amendment, by leave, withdrawn.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

I beg to move amendment 34, in clause 5, page 5, line 48, at end insert—

‘(4A) Regulations may make provision for arrangements for the independent arbitration of disputes between local authorities and providers concerning the fees paid by local authorities, the regulations shall prescribe the matters that are material to making a determination and the circumstances in which the arbitrator’s determination is binding on relevant parties.’

The amendment intends to address another aspect of the market-shaping duty, which is what clause 5 is all about. It recognises that local authorities have a role and responsibility not just for those they pay for, but for everyone with care needs. When the Joint Committee took evidence on this clause on market shaping, we were struck by the trenchant way in which witnesses gave evidence on issues around the market-shaping duty, particularly its interaction with the commissioning responsibilities of local authorities. There were a particularly striking couple of evidence sessions where we had witnesses from the care sector provider organisations.

There was a real sense of alienation and anger about what many in the room on that occasion saw as long-standing problems and a long-standing dysfunction in the commissioning relationship. This was not just a concern of private providers; it was echoed by the charitable sector. Strong representations came from the UK Home Care Association, the Voluntary Organisations Disability Group, the National Care Forum and the new body, Care England.

The concern is long standing. Commissioning has in practice turned out to be crude procurement. It is not a genuine process of determining the level of need and the range of options to meet that need, and having proper conversations in advance of procurement with potential providers.

Photo of Anne Marie Morris Anne Marie Morris Ceidwadwyr, Newton Abbot

Does my right hon. Friend agree that there was also concern that this was very much a decision made on financial lines? Therefore, for many of the organisations selected to undertake the provision, it was a question of the biggest and the cheapest rather than the services that individuals needed.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

My hon. Friend anticipates the point that I was about to make. It was also made in the Joint Committee consideration. It is about price driven below cost. During our second sitting last Thursday, we discussed  in this Committee one of the consequences of that. It is about contracting by the minute: time and task-oriented commissioning, which results in the 10-minute or 15-minute chunking of contracts, so that there is barely any time for interaction beyond performing the basic tasks before getting the documents signed and rushing off to the next job.

My hon. Friend just made the point that, all too often, the conversation is about price. That is a real source of tension. The National Audit Office study, “Oversight of user choice and provider competition in care markets”, refers to a report by the Office of Fair Trading that found

“that providers felt there was a lack of clear strategic direction from local authorities, and a lack of commissioning and procurement skills—which was leading to market inefficiencies and difficulties in planning.”

That, of course, does not apply to every local authority; there are examples of good practice and we need those to be leading the others to improve quality. Care England argues that local authorities are using their monopsony power to force prices down regardless of quality considerations or prevailing economic conditions. The absence of agreement about how objectively to set a fair rate for care can and does end up with local authorities being challenged by judicial review. It cannot be right—it makes no sense—that litigation effectively becomes the only route by which meaningful dialogue and negotiation takes place. That is not a measure of a healthy market; it is a measure of a dysfunctional one.

That is why clause 5 is so important. It is about trying to get local authorities to look beyond their own purchasing responsibilities to the whole of the care market in their locality. Amendment 34 seeks to provide a back-stop power—an arbitration mechanism. In the Joint Committee report, we recommended that local authorities should be required properly to take account of actual costs of care when setting the rates they are prepared to pay providers. The Government gave many positive responses to our recommendations. They said that they would make a change to the personal budget provisions. I will come back to that when we discuss a later group of amendments.

The Joint Committee also recommended that an independent adjudicator was necessary to settle disputes between local authorities and providers over the cost of care. The Government said that they would investigate that as part of last summer’s consultation. It would be helpful if the Minister gave us some information about the Government’s thinking post their response to the Joint Committee’s report. Quite simply, the amendment would give the Government a regulation-making power to establish an independent adjudicator. That is only part of the changes needed to address the concerns to which we will come back, particularly when we consider the quality of commissioning in a later group of amendments. For now, I look forward to the Minister’s response to this amendment.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I find myself agreeing with a lot of what my right hon. Friend said. He used the expression “crude procurement”, which is too often the experience of many care providers. I have been clear that we need substantially to change practice and move away from procuring on the basis of time for care at home, and also from just procuring a place in a care home, rather  than commissioning for great outcomes for improving someone’s well-being. Of course, that is central to the clause and the Bill. The Association of Directors of Adult Social Services is working with the Government to look to design best practice commissioning.

Those local authorities who get it right give clear incentives to care home providers to improve quality and outcomes for people, and focus on the well-being of their residents. My right hon. Friend is, however, right to say that practice is variable and that far too much commissioning and procurement is going on around the country.

Photo of Sarah Wollaston Sarah Wollaston Ceidwadwyr, Totnes

Will the Minister also accept that one of the unintended consequences of the existing arrangements is cross-subsidy by self-funders of those being funded? Does he see arbitration as a way to address that?

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I understand the risk of cross-subsidy; there are many claims that that happens. One of the good things that will emerge from the Bill is far greater transparency about the local authority’s negotiated fee and what the self-funder pays through what is declared in the personal budget, or independent personal budget, which will make any practice of that sort much more difficult. It is hard to predict the exact consequences, but that transparency will ultimately help everyone and make unacceptable practice much more difficult to mask.

The amendment raises an important issue about the relationship between local authorities and care and support providers and how to resolve disputes, should they arise. The Bill recognises the importance of ensuring a variety of high quality services to meet the needs and preferences of all local people, not just those whose care is arranged by the local authority. As part of local authorities’ day-to-day functions, they will agree contracts with providers from whom they intend to commission care and support. Sometimes, those will be block contracts or framework agreements agreed in advance to allow for flexibility over time, but, increasingly, they will be more specific contracts tailored to individual cases and preferences. Where the local authority has put in place a framework agreement or agreed prices on an individual basis, we are clear that prices agreed with providers as part of a contractual discussion are for the agreement of the parties involved.

Sometimes, there will be a dispute between the local authority and provider about the prices proposed or other matters and, occasionally, disputes may become intractable. The amendment would, in effect, require the appointment of a new independent arbitrator to adjudicate in any unresolved disputes.

I understand why that has been suggested and the model from the groceries code adjudicator provides an example of how that could operate. Of course, the problem is that that legislation requires the supermarkets to pay for the adjudication system, but I do not think the suggestion here is for the providers to pay for that and my fear is that the cost of any system would have to come out of the money available for care. Any disputes that arise as part of a contractual negotiation would have to be resolved through that process.

Local authority commissioners and providers should agree prices for care and support that reflect the particular circumstances in their local market. However, such negotiations do not take place in isolation. Local authorities must have regard to the importance of ensuring sustainability in the market as part of their market-shaping function under the Bill. That new duty is made clear in clause 5(2)(d). It means, for instance, that local authorities should not set prices that risk undercutting the stability of the market as a whole. Providers also have a clear responsibility, as they participate in negotiations over local fees.

I completely understand and am realistic about the pressures that providers are under and the respective bargaining power of the parties. We are clear that they should not sign up to contracts that tie them to fee rates that will risk the quality of services or the working conditions of those providing them. In that way, the incentives already exist—both in the Bill and as a matter of business practice—to militate against unreasonably low fee rates. I make the point again about transparency, which the Bill will offer.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam 9:15, 14 Ionawr 2014

Will the Minister consider and comment on the role that the Care Quality Commission can play through its thematic inspections? There is clearly an issue about how prices are set, how contracts are arrived at and the quality of the commission. The old system of routine inspections was meant to address that, but the evidence is that it did not. Will the Minister say how he expects the CQC to use its thematic powers so that that issue is addressed?

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I am grateful to my right hon. Friend for giving me the opportunity to deal with that. There have been suggestions that, through this legislation, the CQC will disappear from the picture. It will not—it will have the power to conduct the thematic inspections. I very much expect those powers to be used, and they should be used where commissioning practices put the quality of care at risk. That might apply in a whole range of different circumstances.

It is important that commissioners are held to account if they are behaving in a way that undermines the quality of care. If we have a commissioner/provider split, we have to get both sides of that equation right to achieve great care. I think we all have to recognise that, so I am grateful for my right hon. Friend’s intervention.

Appointing or establishing a new independent arbitrator would add cost and bureaucracy to the commissioning process. It would be most likely to increase the risk of disputes, and might lead to participants in a dispute feeling absolved of a responsibility to negotiate and compromise. It could also mean issues becoming protracted by requiring more time for resolution, inevitably risking the continuity of care and support.

For those reasons, I cannot support the amendment. I urge my right hon. Friend to consider withdrawing it in light of my response.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

I have listened closely. I am not entirely persuaded, but I want to go away and think about what the Minister has said. The Government have been minded to propose legislation governing adjudication in the  groceries market and have recognised that there is an imbalance of power between different parts of that supply chain. I think there is a similar issue in the care sector.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

In making his case, how does my right hon. Friend argue that such a system, if there is to be one, should be paid for? As I said earlier, the supermarkets pay for the adjudicator system. Is he suggesting that providers should pay? If not, does he concede that the money spent on running such a system would not be available for providing care and support from a local authority?

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

The Minister makes a fair challenge. Of course, any money that comes out of the system is potentially care forgone; I appreciate that entirely.

In response to my Committee’s recommendation, the Minister and the Department said that they would consider the issue actively over the summer. The Minister’s response today has not reflected how that consideration took place. Will he say more, between now and Report, or in correspondence, about what actively happened? It would not have been unreasonable for the Department to have engaged with the provider sector to determine whether there was an appetite for such a measure. I have picked up on generalised support in my discussions with providers.

I have heard what the Minister has said, but I am not entirely persuaded. Today, however, is not the day for dividing the Committee on the amendment, not least because I am sure the Minister will point out its technical deficiencies. However, I want to leave him under no illusions that the issue is one of serious concern. There is a dysfunction here. Simply hoping that things will be better in future because of practice changes is not borne out by similar hopes over the past decade. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.