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Session 2001- 02
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Delegated Legislation Committee Debates

National Care Standards Commission Regulations 2001

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Eighth Standing Committee on
Delegated Legislation

Tuesday 29 January 2002

[Mr. John Butterfill in the Chair]

National Care Standards Commission
(Registration) Regulations 2001

4.30 pm

Mr. Oliver Heald (North-East Hertfordshire): I beg to move,

    That the Committee has considered the National Care Standards Commission (Registration) Regulations 2001 (S.I. 2001, No. 3969).

The Chairman: Is it the wish of the Committee that the regulations be considered together with the National Care Standards Commission (Fees and Frequency of Inspections) Regulations 2001?

Sir Sydney Chapman (Chipping Barnet): If the regulations are taken together, will we have only one and a half hours in which to examine them, or will we have three hours if that is necessary?

The Chairman: If they are taken together, we will have only one and a half hours in which to consider both. Is the Committee content to debate both?

Hon. Members: Yes.

The Chairman: In that case, with this it will be convenient to consider the National Care Standards Commission (Fees and Frequency of Inspections) Regulations 2001 (S.I. 2001, No. 3980).

Mr. Heald: We are grateful to the Government because it is not every day that one prays against regulations and is given the chance to debate them. The last time that I looked at the records, about 35 regulations were debated each year out of roughly 2,000. It is good to be able to have such debates. That said, it is sad that a Department as important as the Department of Health, which is packed full of lawyers—a number of members of the Committee are lawyers—

The Minister of State, Department of Health (Jacqui Smith): Not guilty.

Mr. Heald: No, but I notice that the Minister's Parliamentary Private Secretary is. Members of the Joint Committee on Statutory Instruments, to which I pay tribute, have a difficult, often tiring, job that can take up an entire career in this place. They have considered the regulations and concluded that the care homes registration regulations are defective.

Regulation 10 of the registration regulations requires a person whose certificate has been cancelled to return it within a limited period; it is an offence not to do so. However, regulation 11 states that once the specified day has passed, the Department will serve a notice requiring the person to rectify the offence. Although it is only a technical, legal matter, we are in the business of making law and it seems wrong that the Health Department should have to admit, as it has done, that not only these regulations but two other sets of important regulations—the Care Homes Regulations 2001 and the Private and Voluntary

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Health Care England Regulations 2001—are defective. The Minister has a duty to explain how that has happened. The Government employ a host of lawyers and even have the Attorney-General and Solicitor-General available to them. They are familiar posts to certain members of the Committee, so we are therefore entitled to an explanation of why the drafting is so sloppy.

However, that is not why we wanted a debate on the regulations; were we to vote against the regulations, our arcane procedures are such that they would still be reported to the House as if we had voted in favour. Dividing the Committee may not therefore be worth while, but an explanation is in order.

The background to the debate is the collapse in the number of care home beds, which has fallen by 47,000 since 1997. The effect of that is that at any one time 6,000 patients, many of whom are elderly, are in hospital unable to access care home places. Today, 2,000 patients have been waiting for a month. The Public Accounts Committee report showed that 2 million bed days are lost every year because hospital patients suffer delayed discharges. Hospitals spend £1 million a day, which, according to the Public Accounts Committee, could be better spent on the treatment and care of new patients.

It is important to remember the points that Conservative Members made when the Care Standards Bill was going through the House. It is vital to improve standards and quality in the care home sector and in the other establishments with which the regulations deal, but in a way that does not lead to more care home places being lost or to excessive and unreasonable burdens being placed on what may be quite fragile businesses.

The changing landscape of health care also needs to be taken into account. When we were considering the NHS Reform and Health Care Professions Bill, which is now going through the other place having completed its passage through this House, we argued that it was odd, when so much of the work of the NHS work is to be done in the private sector, which is now the Government's preferred way of dealing with it, that there would be two inspection regimes for the same private premises—one within the Commission for Health Improvement, which will be able to inspect private premises if NHS patients are being cared for there, and the other within the National Care Standards Commission, the body which is the subject of the regulations. The Government have shown some sympathy with that argument, so we must take that into account when considering the regulations.

We have argued for a long time that only one registration of an establishment should be necessary. Will the Minister clarify today the effect of the registration regulations in that regard? If an establishment is required to register because, say, it looks after children, does it have to register again, separately, if it also looks after adults? Clearly it would be damaging to a smooth transition from child services to adult services if establishments that attempt to bridge the gap had to pay two lots of fees and undergo two registration procedures.

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Can the Minister explain why in paragraph 4 of schedule 1 it is necessary for so much financial information routinely to be made available on registration? Clearly some financial information must be made available, because we do not want care homes to go bust, with consequent suffering to their residents. It has been established through case law that some test of financial viability should be taken into account in the registration of a home. However, paragraph 4 lists a range of financial information. Is this another Whitehall belt-and-braces job, in which every piece of information of a financial kind that one could possibly want to see is thrown in for the sake of it, or is there a reason why something more than a bank reference, as set out in sub-paragraph (a), is needed? Clearly fitness is important, but the regulations seem to impose a substantial burden. As this is the first time that any requirement for financial viability has been imposed in statute—the provision is entirely new—would it not be better to start with a light touch?

Ministers often say, ''That would mean that we might have to amend the regulations in due course'', but they have already accepted that they will have to amend the regulations because of defective drafting. Would it not be sensible to start off with a light touch on the financial side and, if it proves necessary to create something more substantial, to amend the requirement when the Government make the other amendments?

Will the Minister explain a point raised with us by the National Care Homes Association? Will it be a requirement that the accounts are kept up to date on a daily basis to allow an inspection of them to occur on any day? Will the annual accounts need to be kept expeditiously up to date and ready for inspection? Does she feel that that is a heavy burden to place on what might be a small business? If concerns have been raised that a business is not financially viable, it may be a good idea to request all kinds of information to check out whether certain steps need to be taken. The possibility of inspection on any day for all homes will be a burden that may be unnecessary.

In the past it was impossible to cancel a registration voluntarily because registration was imposed on the home owner. Regulation 14 of the National Care Standards Commission (Registration) Regulations will make it possible for the first time for a person to cancel their registration voluntarily. Under the old regime, if one's registration were cancelled it would be taken into account if one ever darkened the doors of care home ownership again. Will the Minister assure us that if a person voluntarily applies for cancellation it will not be held against them? If it is to be held against them, will she explain how and in which circumstances?

Will the Minister clarify the effects of regulation 3(2)(c) and paragraph 10 of schedule 2? What is to happen about the requirement to check the criminal records of new workers, given that the Criminal Records Bureau has not yet been established? I am not aware that it will be established in time for the regulations to bite. There is a concession in regulation 3(2)(c) that deals with that, but we want to ensure that workers in these establishments do not have criminal convictions for the schedule offences. How is the

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protection to be put in place? It would be nice to know when the provisions in the Police Act 1997 are to be implemented.

A particular concern has been raised with us by the hair removal treatment industry. There were long consultations before the Care Standards Act 2000 came into force, and there were long consultations on the various regulations. After the consultations had taken place, and without the hair removal treatment industry being consulted, the industry was suddenly parachuted into the National Care Standards Commission regime. One form of hair removal treatment, namely pulsed light, is to be regulated, which means that the NCSC fees must be paid and the inspections will take place, whereas electrolysis, which is a competitor treatment, does not qualify.

Given the cost involved, those who own pulsed light hair removal facilities are unhappy. They have contacted Lord Haskins, who has intervened with the Minister on their behalf. However, they have not received a satisfactory explanation of why they have been involved and they also have detailed concerns about the way in which registration will affect their business. They point out that when it comes into force those who have not applied for registration before 1 April 2002 will have no concession to use their machines, which must be registered before they can be used. There will be a delay with registrations in general and new ones in particular, which will mean that for a lengthy period of time that expensive equipment is likely to be unusable.

One might say that the various establishments covered by the regulations have had three years of consultation, knew all about this and should have got their acts together, but one cannot say that about the pulsed light hair treatment industry because it was parachuted in at the last minute and did not have a chance to say anything. Will the Minister make a concession or explain to us how this will not impose a huge, unfair burden on a small industry?

One benefit of the National Care Standards Commission was to have been the end of dual registration by local authorities and health authorities of beauty treatment parlours. The belated inclusion of leisure facilities within the Care Standards Act 2000 will mean that dual registration will continue for beauty salons and health clubs, which must be registered with the local authority for special treatment. However, if they use pulsed light they must be registered with the NCSC. Will she answer the industry's criticism of that?

The pulsed light hair industry and others are concerned about the inspection fees, which for a small beauty salon providing a marginal service are substantial. More important—this point has been made by Help the Aged and others—if the fees are substantial they are likely to be passed on to users. It is unclear when the Government intend full cost recovery for the work of the NCSC to bite. In the consultation document there was talk of achieving full cost recovery in five years, but what is their current intention? If it is true that the fees will double in the next two and a half to three years, will she give us an idea of the effect on the small businesses that the NCSC will be regulating?

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Is this something that can be accommodated without more places being lost and without creating bed blocking of the sort that is damaging the national health service?

The Minister will know that the school year for a residential special school is often less than 295 days a year. It is right that some such schools will be registered and inspected twice a year, but some will not. She will recall that that issue was raised by my hon. Friend the Member for Bromsgrove (Miss Kirkbride) in a parliamentary question, and she will also know that the National Children's Bureau is worried about it. It has said:

    The pupils of these schools are extremely vulnerable, and the NCB is concerned over the numbers and seriousness of inquiries and allegations of abuse within this sector. The pupils of Residential Special Schools are comparable to those residents of Children's Homes, and some have very little contact with their families despite this being an ''under 295 days'' provision. The pupils' ability to ensure that their complaints are heard is limited, as agencies and systems depend on verbal communication to a very great extent.

    NCB would strongly recommend that inspections of Residential Special Schools be carried out at the same frequency as that of Children's Homes, that is twice per annum.

Will the Minister answer that point? Is it possible for the regulations to be amended to cope with this problem? I imagine that she shares the concern. Is it the case that the only way to change the position is to alter the Care Standards Act 2000? If that is the case, what are her proposals?

I have a long list of questions, which one would expect over such important regulations, and I hope that the Minister will explain whether the order will give the sort of light-touch but effective regulation that is necessary in the sector. I hope that she is not over-egging the regulation to an extent that might damage the sector more than the Government's policies have done already.

4.50 pm


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Prepared 29 January 2002