House of Lords - Explanatory Note
Health And Social Care (Community Health And Standards) Bill - continued          House of Lords

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Clause 112: Complaints about social services

228.     Clause 112 gives regulation making powers to the Secretary of State and to the Assembly to establish procedures for making complaints about social services. These will replace the current complaints procedures set up under section 7B of the Local Authority Social Services Act 1970, which is repealed (see Schedule 14).

229.     Subsections (1) and (3) respectively give to the Secretary of State as regards England and to the Assembly as regards Wales the power to make regulations which make provision about the handling and consideration of complaints about local authority social services. They set out what complaints can be considered under the regulations. This includes complaints about the provision of services by a local authority or other person under a partnership arrangement under section 31 of the Health Act 1999 in relation to the functions of an NHS body. The intention is that a person receiving both health and local authority services from a local authority under such an arrangement will be able to complain to that local authority even if the complaint is about health services which it provides.

230.     Subsection (2) allows for the regulations to make provision for who will consider a complaint in England and subsection (4) allows for the regulations to make provision for who will consider a complaint in Wales. It is envisaged that in both England and Wales, the first stage of the procedure will involve a complaint being made to the local authority concerned, where an attempt will be made to resolve the matter informally. If this is not possible, the complaint may be followed up with a formal investigation. If the complaint is still not resolved satisfactorily, the second stage, involving consideration by the CSCI for complaints in England and an independent panel for complaints in Wales, will follow.

231.     Subsection (5) provides for complaints, or any matter raised by a complaint, to be referred elsewhere: regulations may in particular provide for a complaint, or any matter raised by a complaint, to be referred to the Commission for Local Administration in England or to the Commission for Local Administration in Wales. In each case it will be for the Commission to consider whether to investigate the complaint or matter. Otherwise the complaint, or matter raised by the complaint, may be referred to any other body so that it can decide whether to take any action.

232.     Subsection (6) precludes regulations made under this section from making provision for complaints and representations capable of being made under the Children Act complaints procedure under sections 24D and 26 of that Act. The separate Children Act complaints procedure is being maintained, with provision for the further consideration of such complaints being made by clause 114.

233.     Section 24D requires local authorities to establish procedures for dealing with complaints about the services provided by them under the Children Act for young people who have been looked after by them as they move towards independent living; section 26 requires local authorities to establish procedures for complaints about the discharge of their functions under Part 3 of the Children Act which is about local authority support for children and families.

Clause 113: Complaints regulations: supplementary

234.     Clause 113 sets out supplementary provisions relating to both health and social care complaints regulations.

235.     Subsection (2) provides for regulations to be made to specify such matters as who may make a complaint, the complaints which may or may not be made, and the procedure for making and considering a complaint.

236.     Subsection (3) is concerned with the making of a payment in relation to the consideration of a complaint. The intention is that the payment would be made to CHAI or CSCI in respect of the costs. The amount charged will be subject to review by an independent panel.

237.     Subsection (4) allows the regulations to authorise the disclosure of information or documents. Where it would not be possible owing to common law duties of confidentiality to disclose relevant information about a complaint to the body which is to consider it under the regulations, or to the body to which a complaint is to be referred for consideration under other provisions, subsection (4) allows for the regulations to make the disclosure lawful. This provision will not override the specific obligations under the Data Protection Act 1998, namely, that information relating to an individual must not be disclosed without the consent of that individual unless it is necessary to do so for any of the reasons specified in the Act.

238.     Regulations made under subsection (5) may provide for a situation in which a complaint raises matters which fall to be considered under more than one complaints procedure. The intention is that where there is a complaint which would fall to be considered under two different schemes there should be a single gateway: the regulations should make provision to enable the complaint to be considered by the two schemes in parallel. A single complaint of this kind would trigger action under both sets of regulations working in parallel, so that for the complainant it appears as one system.

Clause 114: Further consideration of representations under the Children Act 1989

239.     Clause 114 inserts two new sections, 26ZA and 26ZB, into the Children Act which provide for the further consideration of complaints made under the Children Act complaints procedure that have not been resolved by the local authority concerned. Section 26ZA is concerned with complaints about local authorities in England; section 26ZB makes similar provisions for complaints about Welsh local authorities.

240.     The Children Act complaints procedures is established under section 24D and section 26 of the Children Act. Section 24D requires local authorities to establish procedures for dealing with complaints about the services provided by them under the Children Act for young people who have been looked after by them as they move towards independent living; section 26 requires local authorities to establish procedures for complaints about the discharge of their functions under Part 3 of the Children Act which is about local authority support for children and families.

241.     Under the current Children Act complaints procedure, if a complaint has not been resolved after consideration by the local authority and the independent person appointed to assist in the consideration of such complaints, the local authority must on the request of the complainant set up a panel that includes at least one independent person to consider the complaint. The intention is that the regulations made under section 26ZA, inserted by clause 114, will replace the panel stage with a new procedure for further consideration, initially by the CSCI.

242.     Section 26ZA(3) concerns payment. The intention is that any payments for the further consideration of complaints would be paid by the local authority to the CSCI. An independent panel may review the amount chargeable and substitute a lesser amount if it thinks fit.

243.     By section 26ZA(4) the regulations may authorise the disclosure of information relevant to a complaint to a person or body who is considering the complaint or to the Commission for Local Administration in England when a complaint is referred to it under the regulations. Such a disclosure may be authorised notwithstanding any rule of common law of confidentiality that would otherwise prohibit or restrict it. This provision will not override the specific obligations under the Data Protection Act 1998, namely, that information relating to an individual must not be disclosed without the consent of that individual unless it is necessary to do so for any of the reasons specified in the Act. This is consistent with provisions made in clause 113.

244.     Clause 114(2) inserts section 26ZB into the Children Act 1989. It broadly replicates for Wales the provision of section 26ZA except that it makes provision for unresolved complaints to be considered further by an independent panel

245.     Clause 114(3) amends 26A of the Children Act which is concerned with advocacy services. The section imposes a duty on local authorities to provide assistance, including assistance by way of representation, for children and young persons making complaints under section 24D and section 26 of the Children Act. The new section 26A(2A) extends the duty to cover the provision of assistance where complaints are further considered under sections 26ZA and 26ZB.

Clause 115: Representations relating to special guardianship support services

246.     Clause 115 makes provision for certain complaints about special guardianship support services to be considered under the Children Act complaints procedure. The new section 26(3C) of the Children Act 1989 extends the duty placed on local authorities by section 26(3) to establish a complaints procedure to include complaints made to the authority about the discharge by the authority of such functions under section 14F (special guardianship support services) as may be specified in regulations. The section specifies who may make such a complaint under the procedure.

247.     Special guardianship orders, made under section 14A of the Children Act 1989, are intended to meet the needs of children who cannot live with their birth parents, for whom adoption is not appropriate, but who could still benefit from a legally secure placement. It is intended that regulations under section 14F of the Act (special guardianship support services) will ensure that local authorities offer a range of support services to be available where appropriate for special guardians and children subject to special guardianship order, their parents and others such as members of the birth family.

248.     The intention is that the regulations made under section 26(3C) will require the Children Act complaints procedure to apply where a complaint is about a support service that is provided for the direct benefit of a child subject to a special guardianship order. In all other cases complaints will be made under the social services complaints procedure under clause 112.

249.     This replaces the power to make regulations about handling complaints about special guardianship support services contained in section 14G of the Children Act 1989, which is revoked by this amendment.

Clause 116: Complaints about handling complaints

250.     Clause 116 amends the Health Service Commissioners Act 1993 to enable the Commissioners to consider complaints from individuals who are dissatisfied with the way in which a complaint has been handled under the regulations made under clause 111.

Clause 117: Complaints: data protection

251.     Clause 117 makes the CHAI, the CSCI and other persons charged under the regulations with consideration of complaints, exempt from the subject access provisions of the Data Protection Act 1998 to the extent to which application of those provisions would be likely to prejudice the proper discharge of the function of considering the complaint. The subject access provisions of the Data Protection Act allow for individuals except in certain defined circumstances to seek and obtain information which is held on them by others. Section 31 of the Data Protection Act provides an exemption from these provisions by reference to a number of different categories of regulatory function exercised by public bodies.

CHAPTER 10 - SUPPLEMENTARY AND GENERAL

Joint working

Clause 118: Co-operation etc

252.     Clause 118 places a duty on both the CHAI and the CSCI to co-operate with one another where it seems to them appropriate to do so for the efficient and effective discharge of their respective functions. This will in particular allow the CHAI and the CSCI to co-ordinate their work programmes. Subsection (2) provides for regulations to prescribe circumstances where the CHAI and the CSCI must consult each other in relation to the proposed exercise of their functions. It is envisaged that in many of the instances where it would be desirable for the CSCI and the CHAI to co-operate, that they would do so without needing to be asked by the Secretary of State. However, there will be instances where co-operation will be essential and it is considered necessary to be able to make regulations to specify in detail the circumstances in which co-operation may be necessary. Regulations may require the CHAI and the CSCI to consult each other before carrying out inspections of a particular type of service, for example, a mental health facility providing integrated health and social services provision, in order to reduce the burdens on those subject to inspection.

253.     Subsection (3) gives the CHAI and the CSCI the power to delegate their functions to one another. Subsection (4) allows for the CHAI and the CSCI to enter budget-pooling arrangements, subject to prescribed conditions. It is anticipated that these conditions will relate to matters such as the requirement to keep proper accounts in respect of pooled funds.

Clause 119: Reviews and investigations

254.     Subsection (1) provides for the CHAI and the CSCI to conduct joint reviews and investigations with one another. This will allow for the joint inspection of bodies such as NHS Care Trusts.

255.     Subsection (2) with subsection (6) provides that, without prejudice to any other powers which they may have, (for example by virtue of their general power to do anything which appears to them necessary or expedient in connection with the exercise of their respective functions) the CHAI may conduct a joint review, investigation or study with any other body (for example Audit Commission or the Housing Commission) that is carrying out a review or investigation relating to the functions of an NHS body. Subsection (3) makes the same provision for the CSCI where another body is conducting a review, investigation or study of the functions of a local authority. Following a joint review, investigation or study, the CHAI and the CSCI may publish, under subsections (5) and (6) a report in conjunction with the body they worked with.

Clause 120: Joint Annual Reviews

256.     Clause 120 allows the Secretary of State to make regulations that would specify that CSCI and CHAI must carry out a joint review and award a star rating of certain health and social care services provided jointly where a local authority and a health service body (such as an NHS trust or Primary Care Trust) and have entered into a partnership arrangement under a section 31 of the Health Act 1999.

257.     Section 31 allows health and social care bodies, such as local authorities, primary care trusts (PCTs) and NHS trusts to form partnerships to improve the provision of health and social care services. This is used to provide services which involve elements of both health and social care provision. The key powers that section 31 provides are the abilities to pool funds and delegate functions to enable integrated provision and lead commissioning (where partners come to an agreement that one of them will take the lead in commissioning services for their mutual benefit). Many different types of health and social care services are provided under the arrangements and these can vary widely with respect to size and the amount of resource involved. Services commonly provided under a section 31 partnership include services for older people, rehabilitative care, child and adolescent healthcare and mental health services.

258.     This clause introduces a broad regulation making power that would enable Secretary of State to prescribe certain services for which a review should be carried out should this be deemed appropriate in the future. For example, regulations could specify that all jointly provided mental health services provided under a section 31 partnership should be subject to a joint annual review by the CHAI and the CSCI.

259.     Such a joint review would enable a separate performance rating to be given for the jointly provided service, in addition to separate health and social care ratings. This would recognise the jointly provided service as something distinct and would be able to demonstrate whether it had added any value to the service provision.

Clause 121: Power to assist

260.     Clause 121 provides for the CHAI or the CSCI to assist other UK public bodies with the exercise of their functions. This will allow for the CHAI or the CSCI to provide assistance to each other, or to other bodies, for example, the Office for Standards in Education (OFSTED), the Audit Commission or the Probation Service. Assistance could include seconding employees.

Clause 122: Arrangements with Ministers etc: CHAI

261.     Clause 122 enables a Minister of the Crown to arrange for the CHAI to carry out any of its functions in relation to health schemes for which the Minister is responsible. For example, arrangements may be made between the CHAI and the Secretary of State for Defence in respect of provision of health care to the armed forces. Subsection (2) provides for the CHAI to also enter into similar arrangements with a Northern Ireland Minister for the Northern Irish health service.

Clause 123: Arrangements with Ministers etc: CSCI

262.     This clause enables a Minister of the Crown, to arrange for the CSCI to advise him with respect to services that are similar to English local authority social services. Subsection 1(b) also allows a Minister to request that the CSCI review, or conduct inspections in relation to social care services. For example, arrangements may be made between the CSCI and the Secretary of State for Defence in respect of provision of social care to members of the Armed Forces and their families stationed abroad. Subsection (2) provides for the CSCI to provide advice and assistance to a Northern Ireland Minister in respect of the provision of social services in Northern Ireland.

Clause 124: Arrangements with the Isle of Man and Channel Islands: CHAI

263.     This clause enables CHAI to provide advice and assistance to the Government of the Isle of Man and the States of Jersey and the States of Guernsey with respect to the provision of healthcare. As the CHAI's functions extend to England and Wales only, any advice and assistance could only be given upon their request. The terms and conditions of any such arrangements could include provision for payments being made CHAI.

Clause 125: Arrangements with the Isle of Man and Channel

264.     This clause enables the same arrangements to be made between CSCI and the Isle of Man and Channel Islands as for CHAI in clause 119.

Annual reports

Clause 126: Annual reports: CHAI

265.     This clause places a duty on the CHAI to produce a report on the way it has exercised its functions during the financial year, on the provision of health care by and for Health Service bodies in England and Wales and on what it has found in the course of exercising its functions under the CSA 2000.

Clause 127: Annual reports: CSCI

266.     This clause places a duty on the CSCI to produce a report on the way it has exercised its functions during the financial year, and on what it has found in the course of exercising its functions during the year.

267.     The CSCI must also provide other additional reports and information on the exercise of its functions as the Secretary of State may request during the year.

Relationship with Government

Clause 128: Duty to have regard to government policy: CHAI; and clause 129: Duty to have regard to government policy: CSCI

268.     These clauses place a duty upon the CHAI and the CSCI in exercising their respective functions to have regard to such aspects of government policy as the Secretary of State (and the Assembly with respect to certain functions of the CHAI) may direct. It is intended that such a direction would be used to direct the CSCI and CHAI to have regard to broad aspects of government policy - for example, in respect of the CSCI, improving the educational attainment of looked after children.

Clause 130: Failure in discharge of functions: CHAI; and clause 131: Failure in discharge of functions: CSCI

269.     This clause provides that where the Secretary of State considers that the CHAI or the CSCI is significantly failing to discharge any of its functions, or to discharge them properly then he is able to issue a direction to the CHAI or the CSCI with which it must comply.

Clause 132: Inquiries: CHAI

270.     Clause 132 provides for the Secretary of State or the Assembly to initiate a public or private inquiry into matters concerning the exercise of any of the CHAI's functions. Subsection (1) provides that the Secretary of State may initiate an inquiry in respect of the exercise of any matter connected with the exercise of the functions of the CHAI. Subsection (2) provides that the Assembly may do likewise in respect of any matter connected with the exercise of the functions of the CHAI in relation to health care by or for Welsh NHS bodies.

271.     Subsection (3) gives the Secretary of State or the Assembly the power to make the inquiry wholly private, but where no such direction is given, subsection (4) enables the person holding the inquiry to make it wholly or partly private. This might be necessary, for example, to protect patient confidentiality.

272.     Subsection (5) provides for section 250 (2) to (5) of the Local Government Act 1972 to apply in relation to an inquiry undertaken in England or Wales. This will enable the person holding the inquiry to issue a summons requiring an individual to give evidence or produce any documents in their custody or under their control at a stated time and place. If that person fails to attend (for reasons other than not having the necessary expenses of their visit paid or tendered), they may be liable to a fine or imprisonment.

273.     Subsections (6) and (7) require that reports of inquiries set up under the powers in this clause should be published unless the Secretary of State or Assembly, as appropriate, decides, for good reason, that publication would be inappropriate. Grounds for not publishing might include, for example, publication being prejudicial to any ongoing criminal investigation.

Clause 133: Inquiries: CSCI

274.     This clause makes the same provision for CSCI as clause 132 does for CHAI, with the exception that it does not allow the Assembly to initiate a public inquiry into the exercise of CSCI's functions this is because CSCI is an England only body.

Information

Clause 134: Disclosure of information obtained by CHAI; and Clause 135: defence

275.     Clause 134(2) makes it a criminal offence for any person, including a member or employee of the CHAI, to knowingly or recklessly disclose confidential information which relates to or identifies an individual.

276.     Subsections (1) to (3) of clause 135 set out a defence to the offence in clause 134. It is a defence to prove that any of the circumstances listed in subsection (2) applied or that the person charged reasonably believed that they applied. It is also a defence to prove that the disclosure was made for a purpose in subsection (3). One of the circumstances in subsection (2) is where the disclosure is made in a form in which the individual to which the information relates is not identified. Subsection (4) sets out when an individual is to be regarded as identified for the purposes of this defence.

Clause 136: Information obtained by CHAI: supplementary

277.     Subject to the provisions outlined in this clause, the CHAI may use any information it obtains or is provided with during the course of its functions, for the purposes of any of its other functions, for example information obtained in relation to NHS care provided by an independent hospital could be taken into account when dealing with issues relating to the registration of that hospital under the CSA 2000.

Clause 137: Information obtained by the CSCI: Supplementary

278.     This clause provides that the CSCI may use any information it obtains or is provided with during the course of its functions for the purposes of any of its other functions. For example, where the CSCI obtains information as a result of inspecting a children's home in exercise of its functions under Part II of the CSA 2000, that a child placed there may have suffered harm it may use this information to evaluate the performance of the local authority that placed the child there.

Wales: Supplementary

Clause 138: Annual reports of Assembly

279.     Clause 138 places a duty on the Assembly to make an annual report or reports, of the way in which it has exercised its social care and health care functions in the Bill, and its functions under the CSA 2000 in relation to the registration of independent health services and registered social care services in Wales, and its findings in the course of the exercise of those functions over the year.

Clause 139: Use by the Assembly of Information

280.     Clause 139 allows the Assembly to use information it obtains in exercising functions listed in subsection (2), namely its health and social care review functions under the Bill and functions under the CSA 2000 and section 80 of the Children Act 1989 (inspection of children's homes) for the purpose of exercising any other of those functions listed in subsection (2).

 
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Prepared: 14 July 2003