§ 8.27 p.m.
§ Baroness Carnegy of LourMy Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Baroness Carnegy of Lour.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The VISCOUNT SIMON in the Chair.]
§ Clause 1 [Definition of "establishments"]:
§ Baroness Carnegy of Lour moved Amendment No. 1:
Page 1, line 18, leave out ("63A") and insert ("63B").
§ The noble Baroness said: In speaking to Amendment No. 1, I hope it will be acceptable to the Committee if I speak at the same time to Amendments Nos. 2, 3, 4, 5 and 6. These six amendments are concerned with appeals against registration. They do not affect the main substance of the Bill but remedy two important omissions.
§ At Second Reading I explained that Clause 3 of the Bill extends the present limited powers of local authorities to attach conditions to the registration of the establishment to which the Bill applies. That is done by means of Clause 3(2), which replaces the relevant provision in the Social Work (Scotland) Act 1968.
§ It has been drawn to my attention that this subsection is defective in two significant ways. First, while it allows for appeals against conditions imposed after registration it does not allow, as was the intention, for appeals against conditions forming part of the initial registration. Secondly, Clause 3(2) does not require local authorities when they intend to make or vary conditions for registration to notify the applicant of that intention or to give him or her an opportunity to make representations and be heard. Amendment No. 5 inserts a new clause after Clause 3 of the Bill. This new clause remedies the omissions I have just described and does so by reproducing procedures similar to those contained in Section 64 of the 1968 Act. The other amendments in this group are consequential. I beg to move.
The Earl of DundeeI should just like to record that the Government welcome the terms of these amendments and are grateful to my noble friend Lady Carnegy for them and for their effect, which corrects and improves the provisions on appeals in the Bill.
§ On Question, amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Voluntary registration]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
320§ Lord Ross of MarnockCould we have some information about Clause 2? I have been concerned about this voluntary registration. It says one queer thing. I considered putting down an amendment but thought better of it. In any case, we have another stage to come and I could put it down then if we are not satisfied. Why have we got this phrase:
Any grant-aided school or independent school within the meaning of section 135(1) of the Education (Scotland) Act 1980 (which defines terms used in that Act) which performs functions such as are described in section 61(1) above"—that is as amended, of course—may, but shall not be required to".Why do we need the words "shall not be required to"? If you say "may", then the option is there: they may or they may not. Why is it there for that purpose? It is rather strange when you start to read this and try to get to Section 61 of the original Act and then put this in. You get something like:The provisions of this Part of this Act shall apply to establishments to which this section applies subject to the following—Sections 61(2) and (3) actually mean that you do not need to register. Then, "section 65 shall not apply". That is the removal of the person in charge and in control. It is not easy to follow. I am relying upon the noble Baroness to give me an explanation as to why this is here, what it means, and why it is put in this way. It is difficult to follow.
- (a) section 61(2) and (3) shall not apply;
- (b) section 62(8) and (8A) shall not apply;
- (c) section 65 shall not apply".
§ Baroness Carnegy of LourThe voluntary registration applies to establishments which are registered with the education authority, and because they have partly a social work function may want to apply for registration in order to ensure that they are acceptable to local authorities for placing people in those schools, and so on. The local authorities will wish to place young people there if they are registered, but it is not made compulsory because there is no need for it to be. If they do not want to be registered, they do not have to be. They are registered in any case as schools. That is my understanding of it. My noble friend on the Front Bench may have something further to say.
§ Lord Ross of MarnockSurely they are registered not with the local authority as schools but with the Secretary of State, so that the powers in respect of inspection and so on do not rest with the education authorities but rest with the Secretary of State for the Scottish Office. Schools were the entire responsibility of the Secretary of State. For years and years since this Government came to power, and it may well be before that for all I know, they have been trying to get rid of them because the full cost fell on the Secretary of State's estimates. Certainly the local authorities had a responsibility in that they paid for every child who went there. Now that has been changed.
I am just wondering whether the local authorities have the power of inspection in respect of the change, although it is fairly well laid down in the Act in respect of what had to be provided and what the Secretary of State demanded in respect of these establishments. I had the impression from Second Reading that the 321 Government were reasonably anxious that they should register. Now we have this specifically telling them that they may register, and underlining it, quite unnecessarily, with the words "but shall not be required to".
The Earl of DundeePerhaps I may be able to help the noble Lord. In the first place, there are the List D schools. The position with them is that the former List D schools, which as voluntary establishments are continuing to provide child care services from 1st April 1986, were encouraged to apply for registration under Part IV of the Act. As explained to your Lordships at Second Reading, this is very much in their own interests, and I understand that they have substantially done so.
In regard to other grant-aided or independent schools there are only a comparatively small number of residential and grant-aided schools which offer substantial child care services as well as education, but in such cases the Scottish Office will draw attention to the new provisions when they come into force and point out to the establishments concerned the desirability of their applying for registration.
It will be explained that it is in their own interests to apply for registration since they are dependent on children being referred from the relevant local authority departments. The fact that schools are providing services such as are provided in the 1968 Act may indeed make it appear that the schools should apply for registration under the 1986 Act, but I think the provision makes it clear that such registration is purely voluntary.
§ Lord Ross of MarnockBut what is the effect of subsection (4) on those affected by this clause and subsection?
The Earl of DundeeMy understanding is that there will be no coercion whatsoever on the independent schools to register, but that they are expected to register as it is understood that it is very much in their interests to do so; and indeed substantially they have already done so.
§ Lord Ross of MarnockI think I should have asked the noble Baroness, Lady Carnegy, about this. Subsection (2) says:
Where an application for registration of a grant-aided school or independent school is granted, the establishment shall be entered in the register kept for the purposes of section 61(2) above by the local authority or, as the case may be, the Secretary of State.Then you go to subsection (4):The provisions of this Part of this Act shall apply to establishments to which this section applies subject to the following".Here we have another reference to Section 61(2)—let us forget what Section 61(3) says—and it says, "shall not apply". What does Section 61(2) say? They do not need to register. Here we are talking about their being registered under subsection (2). I know that it is a bit complicated but we have got this more or less at the last minute. We have been rather preoccupied—and I know that the same is true in respect of the Minister and the noble Baroness, Lady Carnegy—with another matter. The other matter has been carried out so hastily that we do not even have the reprint of the Bill with which we are to deal on Monday. Here we 322 have a Bill which was probably drafted by the same people. It is as complex again and I cannot make head or tail or it. I hope somebody can.
§ Baroness Carnegy of LourWill the noble Lord confirm that he is referring to subsection (2) of Clause 2?
§ Lord Ross of MarnockNo, I am not. I am referring first to subsection (2) of Clause 2, and I am linking that up with what is written in subsection (4)(a) of Clause 2.
We start at the back. Subsection (4)(a) refers to Section 61 of the 1980 Act, I presume. It reads:
The provisions of this Part of this Act shall apply to establishments to which this section applies subject to the following—(a) section 61(2) and (3) shall not apply;".However, in subsection (2) we are told:Where an application for registration of a grant-aided school or independent school is granted, the establishment shall be entered in the register kept for the purposes of section 61(2)".
§ Baroness Carnegy of LourThe whole of Clause 2 permits the registration of these establishments under both the 1968 and 1980 Acts, as I said when I first rose, with registration under the 1968 Act being on a voluntary basis. Special provisions are included to disapply certain enforcement and other provisions of Part IV of the 1968 Act which will continue to apply to establishments which are required to be registered under the Act. There are those establishments which, because they have a part of their activity which they desire to register in order that they can become more acceptable to those who might place people in the establishment, will wish to register; but others will not. I think that that is what I said in the first instance.
§ Lord Ross of MarnockI think that it is, but it still does not make sense when one sees what is written here. I hope that somebody will clarify my mind.
The defined term is in the 1980 Act—that is, Section 135(1) of the Education (Scotland) Act 1980—and we do not need to worry about that because it is clear. We are dealing with independent and grant-aided schools and we know that certain schools that were under the full control of the Secretary of State are now grant-aided or independent. They will be independent. They were always governed and owned independently but they had a relationship to the Secretary of State and the local authority which was covered by the original Act. Of course Section 135 is the consolidation Act of 1980.
I am concerned about the fact that the Bill provides that they may apply for registration under this part of the Act. It goes on to read:
Where an application for registration of a grant-aided school or independent school is granted, the establishment shall be entered in the register kept for the purposes of section 61(2).".Subsection (4)(a) reads:Section 61(2) and (3) shall not apply;".That is the point I am making. Subsection (2) reads:the establishment shall be entered in the register kept for the purposes of section 61(2)".Then we are told that Section 61(2) shall not apply.
§ Baroness Carnegy of LourI think that the establishments about which we are talking provide care in addition to education to the same children, at the same time and in the same place. Therefore if one has compulsory registration in parallel in relation to those establishments it would not work. The suggestion is that there should be informal dual registration and that that would be a considerable improvement on the present situation. That is my understanding.
§ Lord Ross of MarnockI admit that I have not had the time to go carefully through all the various Acts. However, I looked at them quickly after I had eventually discovered the Acts in the Library. One of them had been missing for a long time. I do not know who was studying it. It may be that the noble Lord, Lord Ferrier, has been studying it. He indicates that he is not guilty. We must try to discover the identity of the person who has been anxious to obtain the Act and blind us all with science. Maybe it was the draftsmen who took it out but then thought they would do better without it.
I eventually obtained the Act, but it still defeats me. Let us suppose that at the next stage I table an amendment leaving out subsection (4)(a). I hope that by that time someone will have a perfectly lucid explanation as to what will happen in that event. In the meantime, I shall rest my case and allow Clause 2 to stand part.
§ Clause 2 agreed to.
§ 8.45 p.m.
§ Clause 3 [Registration]:
§
Baroness Carnegy of Lour moved Amendments Nos. 2 to 4:
Page 4. leave out lines 15 to 36.
Page 4, line 38, at end insert (", new condition").
Page 4. line 39, leave out ("(5A) or (5D) above" ") and insert ("or (5A) above or section 63A(7) below" ").
§ The noble Baroness said: I have spoken to Amendments Nos. 2 to 4 and I beg to move.
§ On Question, amendments agreed to.
§ Clause 3, as amended, agreed to.
§ Baroness Carnegy of Lour moved Amendment No. 5:
§
After Clause 3. insert the following new clause:
("Appeals against conditions imposed on registration or subsequently.
.—After section 63 of the 1968 Act insert:
63A.—
§ The noble Baroness said: I have already spoken to the amendment and I beg to move.
§ Lord Ross of MarnockDoes this also relate to Clause 5?
§ Lord Ross of MarnockVery well.
§ Baroness Carnegy of LourI spoke to Amendments Nos. 1 to 6 and moved them en bloc.
§ On Question, amendment agreed to.
§ Clause 4 [Jointly registrable establishments]
§
Baroness Carnegy of Lour moved Amendment No. 6:
Page 5, line 33, leave out ("63A") and insert ("63B").
§ On Question, amendment agreed to.
§
Baroness Carnegy of Lour moved Amendment No. 7:
Page 7, line 2, leave out ("1(2)") and insert ("1 A(a)").
§ The noble Baroness said: With the permission of the Committee, I shall speak to Amendments Nos. 7 and 8 at the same time. When this Bill was introduced, the Government were in the process of consulting interested parties on proposals for changes in nursing home regulations. I understand that that exercise is 325 now complete and there is clear support among health boards for an extension of their charging powers. It therefore seems sensible to make appropriate changes by means of this Bill.
§ Private hospitals and nursing homes in Scotland are regulated by the Nursing Homes Registration (Scotland) Act 1938. That Act provides for the Secretary of State to set a fee which health boards may charge applicants for registrations under the Act. This amendment is intended to extend the power of the Secretary of State to enable fees to be set in respect not only of first registration but also for the annual continuation of registration, for applications to vary conditions and for the issue of a new certificate following a change in registration.
§ The effect of these amendments will be to place private hospitals and nursing homes in Scotland in a position as regards fees broadly compatible with that already prevailing in England and Wales and also with the proposals contained in this Bill for residential homes in Scotland. Health boards will be enabled, through the fees collected, to offset more effectively the costs of registering private hospitals and nursing homes and exercising continued supervision over such establishments. I beg to move.
§ Lord Ross of MarnockI thought the noble Baroness said she was taking some other amendments with this one. I did not quite see how this fitted in with Clauses 5 and 6 in respect of nursing homes because I did not think that we were up to the point where we had even mentioned nursing homes. I do not see any reference to that, apart from subsection (2) of Clause 4, which we have not quite come to yet. I am quite willing, however, to take the point.
We have been dealing up to now with children, because the social work Act is concerned with children. Here we are dealing with something different, and that is what surprises me. There was a reference in some of the many papers which I eventually received, but rather too late. It made fascinating reading for anyone with my knowledge of the Scottish Office, where a Bill like this is not unusual. In fact it is quite the thing to pass such a Bill at the last minute to a private Member and ask that Member to handle it, when it is the Scottish Office which has been handling it all the time. An unfortunate Minister is told at the last minute, "Oh, we've got this bit of legislation through unexpectedly: it's yours", especially when he is busy with something else. It rather amused me to see what was put out in respect of this.
I was concerned here at the reference to private hospitals and to client groups. Am I right in thinking that the "client groups" in respect of nursing homes are not children but adults? That was my reading of it, in what time I had to spare for some of the papers which were belatedly sent to me.
Perhaps I should say that nobody in Scotland has written about this Bill at all, nobody in local government, nobody concerned in the actual business. I do not know where it all came from. Certainly it started life and was mentioned and printed at about the end of February this year. It has made remarkable progress since then without a word being said about it, 326 so far as I can understand, in another place. So we really ought to be asking questions about it. That is the first point.
The noble Baroness spoke about fees. I think we should be given some information about the likelihood of these fees because, under the Nursing Homes Registration (Scotland) Act 1938, when anyone applied for registration they had to apply in writing and to send five shillings. That was the cost of the fee then, as I am perfectly sure the noble Baroness already knows, I think from Clause 1 of the 1938 Act. I remember we discussed this at home that year. It was the only thing we were concerned about in 1938, the fact that you could open a nursing home for five shillings, provided you met the conditions. I should like to know what the fees are now in that respect.
§ Baroness Carnegy of LourI appreciate that it has been difficult for the noble Lord to spend time analysing the Bill in his usual careful way, although he has done a great deal of work on it. as one can tell from his comments.
What has happened in so far as the amendments to which we are now speaking are concerned, as I think I said earlier, is that there was a consultation going on about changes in the arrangements for nursing homes at the time when the Bill first began its course in another place. That consultation came to a conclusion and this is a convenient opportunity to extend the changing provisions to a different sort of establishment—namely, nursing homes.
The Bill as it stands is about adults as well as children—about old people's homes, as the noble Lord will remember. The Second Reading debate was not about children only: we were talking about homes for adults and old people as well. So it is not entirely unsuitable to do this. The consultation which the Government had has come to a conclusion now and there is support for the notion that additional fees should be charged for registering these nursing homes.
The matter is a little complicated because this amendment makes provision for inserting a new clause into the Nursing Homes Registration (Scotland) Act of 1938 and the clause enables health boards to charge fees annually for the continuation of registration in respect of applications for variation in certain registration conditions and for the issuing of new certificates following a change in any condition of registration of a private hospital or nursing home. The Secretary of State for Scotland will prescribe by regulation the level of fees to be charged and the time at which they fall due. So this is adding an extra dimension to the Bill and amending another Act.
However, it seems not entirely inappropriate to do so. I did not mention this in the Second Reading debate, as I think I explained informally to the noble Lord, Lord Ross, because, when I received notification that this might be desirable, I myself had not had a chance to look into it and see if I was happy about it. Having done so, I am now moving these two amendments, which have this effect.
As to the level of fees, I am not sure whether my noble friend can help us on that or on any other aspect about which I have not been able to enlighten the Committee.
§ Lord Carmichael of KelvingroveBefore the Minister replies, I wonder whether he can help me on the question of fees. I do not know whether they are large or small or pro rata with the five shillings charged, as my noble friend Lord Ross of Marnock said, for nursing homes in 1938. I know that voluntary organisations very often operate at a deficit in supported accommodation operations. Will they be financially compensated for the new registration fees? Or, better still, will they be exempted from them? As many of them get their money from the local authority, it would seem ridiculous if they were compensated by the local authority and then handed the money over from another pocket. Perhaps that is something the Minister might find it difficult to answer tonight, but I know that some of the voluntary organisations are rather concerned about it. A lot would hinge on how much the fee was. If it was a big fee it could be quite a serious thing for a voluntary organisation.
§ 9 p.m.
The Earl of DundeeAs to the level of fees and the impact that fees are likely to have, I hope I can reassure the noble Lord, Lord Carmichael, that as currently proposed they are not too onerous: I think the level is £100. It is suggested that it should go up to £550 for the initial registration cost. The annual charge will be in the region of £15, which is estimated to be a weekly charge per person of about 28 pence, I think.
§ Lord Carmichael of KelvingroveCan the Minister help over the question of whether there will be any reimbursement? A fee of £550 for a voluntary organisation in Lanark, where there is a number of such organisations, would be difficult for them to raise. I doubt whether they would even raise the one year's fee in a flag day in Lanark. How else will they be compensated? Will they be compensated for that very large initial fee? I can understand that £15 later on is manageable but £500 is a very large sum for a relatively small voluntary organisation to meet. Perhaps the Minister would take time and write to me before the next stage of the Bill.
The Earl of DundeeOn that point, I should like to say a word to the noble Lord, Lord Carmichael, about the nature of the discretion that local authorities will have in regard to the fixing of fees. The arrangements are that local authorities will have discretion to charge according to their reasonable costs, in general terms, within the maxima prescribed by the Secretary of State. That of course will allow them to charge less than the maxima either generally or in relation to particular establishments.
§ Lord Ross of MarnockThis is subject to what is already laid down in, I think, Section 1 of the 1938 Act. Those who are going to apply for registration under the 1938 Act will need to comply with all the other regulations already there. I do not know whether the noble Earl is aware of this, but they have this control over the persons who are employed and the persons who run the establishments. There has to be either a qualified resident—I stress "resident"—medical practitioner or qualified nurse. 328 Does this mean—remembering what we have already said about Section 61 and the changes we are making there—that this is where the adults that were spoken about come in? It has been said that there probably will be adults in these nursing homes. If adults are going to be there, perhaps somebody can tell me how they are going to be covered by a piece of legislation that we have been dealing with up to now. Are these adults going to pay the collective charge or are they going to pay the personal community charge? We were told just the other night that in relation to other hospitals they were covered by that part of the Act dealing with Crown lands. These are not Crown lands, and I think a reference was made at one point that took us from non-Crown lands through to those premises which could come under I think Clause 11—the collective community charge.
How will these people fare? We are told that there are new developments and people will be taken in there. How are they going to be dealt with under the new Bill? It is important because many of these people could be coming from long-stay hospitals where they have not paid any community charge. But under the Bill, coming half-way out into the community, they are now liable for the community charge. They did not pay anything before in the way of rates—in fact we were told just last night that people in long-stay hospitals and people in prison would be under the Secretary of State or a government department. But obviously these private nursing homes are not. What is going to happen there?
The noble Baroness may say that she does not know. I do not know either. I usually only ask questions if I already know the answers, just to see whether Ministers know the answers or can get the information on time from the usual charge of the cavalry from here to another place and back again. It is always very interesting. From that point of view, I should like to know whether the adults who are in these nursing homes are going to pay the personal community charge, or is it going to be collective? Is it a good idea that at one time you are trying to get people out of long-stay hospitals into the community and then you penalise them when that is done? That is going to work against the whole principle of the new ideas that are being developed in respect of mental health, and of course it could be physical health as well.
§ Baroness Carnegy of LourThe noble Lord asks questions of enormous interest. But, frankly, this Bill is not about how nursing homes or other establishments are set up. The Bill relates to paying fees for registration and for varying registration. It has nothing to do with whether patients pay the community charge or whether there is a collective community charge to be paid. Personally, I should certainly not be in a position to answer that question. To do that I should have to look back at our discussions on the Abolition of Domestic Rates Etc. (Scotland) Bill.
We are now discussing nursing homes. This amendment concerns nursing homes; the previous amendments were concerned with other establishments. The nursing homes might be children's nursing homes or nursing homes for adults. My noble friend gave the type of level of registration fee or fee for altering registration. It is not a very large sum if 329 divided between all the people who are residents in the nursing home. It is a very small sum and would probably be included as part of the cost per day that is charged to them for residence. I do not think that it has very much to do with the community charge in this context, although, of course, it has for individuals.
§ Lord Ross of MarnockThe noble Baroness may think that it will not be a very large amount. But, as I understand it, there will also be a continuing annual fee in respect of inspection and the like. That is something else. I am thinking about the people who own such establishments and what they have to do. If they come under Clause 11, then obviously it will be their task to collect the personal community charge. It may well be that the people with whom they are dealing are not exactly those who can easily fill up forms in respect of rebates and so on. That is something else that will be at the cost of the people concerned.
Perhaps the noble Baroness would answer my first question. Is this where the adults that have been mentioned come in? They are mentioned in other papers that the Scottish Office sent to me about six days ago, although I have not been able to read them until today. This is where the adults and the community charge comes in.
I do not expect an answer to this question but I am telling the noble Baroness of the problems that will arise in relation to those who register. If they do not need to register, they may decide not to register because of the complexities into which they will be running.
§ Baroness Carnegy of LourThe various parts of the Bill mention adults and the establishments in which they are involved. We were also discussing homes for adults in an earlier part of the Bill. This amendment concerns adults or children in nursing homes.
As regards the amount that will be added by the cost of registration, if the fees are comparable to those in England—the matter that causes the noble Lord so much concern is very similar to an arrangement that already exists in England—where the annual fee was set at £15 per place, it would add a sum of 28p to weekly maintenance costs. The level that we are talking about is not enormously high.
The adults are in the nursing homes that will be included by this amendment and also in other establishments that are covered by other parts of the Bill. I hope that this is now clear to the noble Lord.
§ Lord Ross of MarnockI am grateful to the noble Baroness for that explanation. I shall not oppose her amendment but I shall think about it in connection with the future progress of the Bill.
§ On Question, amendment agreed to.
§ Clause 4, as amended, agreed to.
330§ Clause 5 [Registration fees]:
§
Baroness Carnegy of Lour moved Amendment No. 8:
Page 8, line 2, at end insert—
("(3) After section 1 of the Nursing Homes Registration (Scotland) Act 1938 insert—
("Registration fees.
1A.—A Health Board may impose fees, of such amounts and at such times as may be prescribed by the Secretary of State in regulations under this Act, in respect of—
(4) In section 1(2) of the said Act of 1938 (which relates to the registration of nursing homes) the words "and shall be accompanied by such fee as may be so prescribed" shall cease to have effect.").
§ The noble Baroness said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
§ Clause 5, as amended, agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported with amendments.