HL Deb 20 May 1991 vol 529 cc74-82

7.15 p.m.

Baroness Gardner of Parkes

My Lords, I beg to move that this Bill be now read a second time.

The Bill is a much needed piece of legislation. It has been clear for some time that complete exemption from registration for all small residential care homes is no longer defensible. The opportunity now exists to act on behalf of a significant number of vulnerable people in small homes who at present have no protection. The Bill deals solely with homes accommodating three people or less. There are many thousands of such homes throughout the country and at present all are outside regulatory control.

As a former chairman of a local authority social services committee, I have a personal interest in the subject. The simple course is to have an amendment Bill rooted in the established regulatory scheme. That will achieve the objectives and effects which most people believe to be essential. The aims are, first, protection for highly vulnerable residents from the risk of unsuitable and unscrupulous people setting up and running small care homes; secondly, control arrangements that recognise the special nature of the very small homes; thirdly, a regulatory system that gives the authorities enough clout but not too much and creates a good balance; and fourthly, a regulatory system that will be relatively cheap to operate with fees kept to modest and, being self-financing, involving no cost to the charge payer.

The Registered Homes Act 1984 is the right vehicle for this change. It is widely agreed that simply to extend the scope of the present law would be too onerous on people running small homes. However, the 1984 Act contains the most essential elements— the building blocks— that are needed for the regulation of small homes. Clause 1 pulls out some of these, adds one or two that are new and re-assembles them.

Most people now running such homes are admirable and provide an excellent service for their clients. However, we hear harrowing stories of different situations. The Bill is necessary in order to sort out the small number of cowboys. The fundamental requirement is to register with the local authority. An exception is made of people caring only for relatives; an important point to make. There is also the power to widen the exemptions in reserve if that were thought to be suitable. Registration is dependent on the fitness of the applicant to be involved in running a home. It tackles the source of concern and criticism which has been voiced during the past two years. Indeed, a campaign was run in one of our more popular Sunday newspapers. There is some evidence of people who have been found unsuitable to run larger homes and declared unfit to do so continuing in business by reducing the number of residents to three per home and spreading them over a larger number of homes. Of course, that was never the intention.

The Bill constitutes no threat to the vast majority of proprietors. There will be no heavy additional burdens on local authorities. A single criterion avoids the risk of destroying the special attributes which small homes often have. There is a special homely environment in small homes with three or fewer people. We do not wish to run the risk of driving people out of business because there are so many regulations to contend with that they consider it not worthwhile. We do not wish to create a situation in which a genuine and honest proprietor is so anxious about meeting regulations that anxiety and upheaval are created for the residents. I am convinced that the single criterion strikes the right balance.

That is backed up in two ways. First, there is a requirement on a proprietor to complete a simple annual return. It is not enough for local authorities to register people and then have no further contact. The authorities need to know that the same person is still running the home and that there has been no dramatic change in the home. An annual return will keep both sides in contact with each other and will ensure that there is a simple check that things are as they were when the original application was made.

Secondly, by drawing on the power of entry provided in the 1984 Act, the authority is given the means to act where there is a real cause for anxiety. However, it is not intended to require authorities routinely to inspect all homes. That would set up quite a bureaucracy and greatly increase costs. However, there must be power to act in response to special and, let us hope, exceptional circumstances where serious complaints mean that full inspection is necessary.

Sanctions similar to those which the authorities already have in relation to larger homes are another feature of the Bill. In the last resort registration can be refused or the home closed.

Returning to the first clause, I wish to emphasise one other important new provision. I have already mentioned fees. The central feature of the scheme for larger homes is that effectively it is self-financing. That principle is extended here to cover the present proposals for small homes with one essential difference; that is, the Bill gives authorities the power to waive all or, perhaps even more importantly, part of the registration fee and the annual fee where they believe that to be appropriate. The level of the fee will be set by the Secretary of State by regulations following consultation. We hope that it will not be too great. Even so, some people running small homes will already be known to the registering local authority and may have been approved under control arrangements for, perhaps, an adult placement scheme. The registration of that person as fit would be only a formality. For that reason, scope to waive fees would be very valuable.

A transitional period is needed before the Bill is brought fully into effect. That will give the Department of Health time to make regulations, to consult about them and to issue guidance. It will also give time for proprietors to lodge their applications. The first half of Clause 2 deals with that by providing that the commencement date should be set by order. There are also special provisions covering the period immediately after commencement when all applications should have been lodged but processing may not have been completed. The second half of Clause 2 is made up of a group of necessary consequential amendments to the National Assistance Act 1948 and the Children Act 1989. I beg to move.

Moved, That the Bill be now read a second time.— (Baroness Gardner of Parkes.)

7.24 p.m.

Lord Ennals

My Lords, perhaps I may congratulate the noble Baroness, Lady Gardner of Parkes, and also her honourable friend in another place, Mr. John Butterfill, who promoted the Bill in another place. It may seem strange that an important issue like this is not presented in a government Bill. However, it has not been so presented and I am glad that the Government are supporting the initiative taken by the noble Baroness.

The exclusion from the provisions of the Registered Homes Act 1984 of small homes caring for four or fewer frail people was raised in another place during the passage of the National Health Service and Community Care Act and was raised in this House by my noble friend Lord Carter.

During the passage of the Bill my honourable friend Ms. Harriet Harman said that one of the problems was that the Government seemed not to know how many small homes would be covered by this sort of legislation. That is understandable. Without registration, they could not know. They may know of some but not of all of them. She carried out a survey by means of contact with directors of social services. They estimated that one in five of all homes in their areas are unregistered because they are small, having fewer than four residents. That meant that the safeguards provided by the 1984 Act as regards the quality of standards, staffing and premises and the character of the proprietors of homes do not extend to residents in one in five of such homes in Britain. That proves the importance of the legislation which the noble Baroness is now introducing.

When the Bill was dealt with in another place on 14th March Ms. Harman went on to propose in another place that a way forward would be to give registration authorities the power to enter, inspect and take action against small homes. They are given the power when a problem is identified but there is no duty on local authorities to require them to register small homes which they know to be in their area. Therefore, when they know there is a problem they have the power to act but are not weighed down with extra registration duties when they already have inadequate resources to carry out their present registration functions— a point made by the noble Baroness.

The issue is important, first, because of the nature of the people concerned. They are frail, not necessarily because of age but because of handicap of one form or another. Therefore, they are vulnerable. Vulnerable people must have special protection. Secondly, as the noble Baroness said, there is a small minority of unscrupulous people. However, even if it is a minority this matter is one which we must take action against. If that were not so, the noble Baroness would not have thought it necessary to bring forward this Bill. I agree with her about that.

As we know, some proprietors have convictions against them for offences such as assault or financial improprieties. If a proprietor has in his home two or three frail old people who are not in position to take decisions for themselves, he can easily guide them into signing a piece of paper which may sign away what limited funds they have.

Another encouraging point about the Bill is that it is supported by Age Concern, the Association of Directors of Social Services, which strongly supports the Bill, the National Care Homes Association, the Royal College of Nursing, the Association of Residential Care and the Independent Health Care Association. Therefore, the noble Baroness is in good company.

I am a member of the council of Counsel and Care, which provides advice and help for elderly people. During the course of its work there has been a good deal of contact with a number of private residential care homes with three or fewer residents. While many of those small homes, as we have said, provide excellent care for elderly people in a family atmosphere, the organisation is anxious because currently there is no regulation or monitoring of those establishments.

In a number of isolated cases the organisation has been asked to give advice to people who are worried about vulnerable relatives in such small homes. Complaints have been received about neglect of frail elderly people. Relatives have voiced anxiety about the suitability of the home owner, which at present is unchecked. In some cases it has emerged that the person in charge was the former proprietor of a home deregistered by a local authority after serious problems in the home had been investigated. Obviously it can happen that someone who has been deregistered decides to run a string of small homes with three or four residents because then there will be no registration. There are some such cases and that is why it is necessary to have a system of registration.

Counsel and Care warmly welcomes the Bill but there are a number of points that I wish to draw to the attention of the noble Baroness. One is that the Wagner Report, A Positive Choice, highlighted the fact that in some areas a proprietor may set up a number of private homes with three residents, none of which is registered in any way. The result is that one person, however unsuitable, may be responsible for providing personal care for any number of elderly people in need of personal care. The Wagner committee recommended that in such cases small homes should meet the full registration requirements of the Registered Homes Act 1984. Counsel and Care certainly shares that view and I shall be interested to hear from the Minister, and indeed the noble Baroness, whether they believe that some special provision should be made for those who run a chain of small homes.

Counsel and Care welcomes the Bill's requirement that registration of small homes will include some test of the fitness of the proprietor to run a home, and was further pleased at the suggestion for an annual return of the registration in which the staff of the home are noted by the registering authority. However, they were disappointed that no fuller definition was given of what "fitness" means. That is an important point. What does "fitness" mean? In the experience of Counsel and Care, registration officers pay more attention to a person's financial capability in running a home and less to his or her qualifications and personal suitability in providing the personal care for prospective residents. That is a point that we should look at, to see how we can better define the term "fitness".

The third point is that the Bill does not impose a duty to inspect small homes; it merely allows for the right of random inspection. Counsel and Care feels that it would be more suitable if small homes were inspected to ensure the maintenance of high standards of care rather than randomly visited after a problem has been reported.

Those are questions to which the Minister may be able to respond in her reply. I am pleased that the Bill has been introduced, and so too is my party. In our policy statement, which we discussed in your Lordships' House on another occasion, we said, Labour will close the loophole which permits many homes to escape regulation by limiting the number of their residents to fewer than four, but will ensure that the building regulations are appropriate to their size. This clearly is an all-party measure and we warmly welcome the initiative taken by the noble Baroness.

7.33 p.m.

Baroness Cumberlege

My Lords, on the last occasion on which I spoke in your Lordships' House, on Wednesday last, I was justly chastised for running over time. Tonight, shaken but not stirred, I shall he brief.

I should like first to welcome the extension of the regulation system to small homes. I wish to draw your Lordships' attention to the problem of local prejudice, which the case of C&G Homes last year so graphically illustrated, and which can prevent the setting up or force the closure of residential care homes. In that case the Court of Appeal declared that Bath Health Authority's arrangements for housing eight former residents of psychiatric hospitals in two houses in the community were contrary to a restrictive covenant limiting the use of the property to that, incidental to the enjoyment of a private dwelling house". Those two houses were being used as part of the policy for rehousing former patients into the community. There had been no complaints from neighbours as to the conduct of the occupiers of those houses. C&G Homes had a restrictive covenant placed on the houses in anticipation of a problem based on the status of the occupants alone; simply because they were mentally handicapped people.

If appropriate, I should like at Committee stage to introduce amendments which will deal with the use of restrictive covenants. I do not think it is acceptable in our society that four students can live together in a house without restriction yet four people with a mental handicap are forced out due to local prejudice. If there are problems, the criminal and civil law protect neighbours from disruption.

The key to community care is satisfactory housing arrangements, and residents must be protected from unjustifiable prejudice. Few opportunities arise in your Lordships' House to help towards the legal protection of the most vulnerable members of our community, whose chances of living a fulfilling and independent life depend on the availability of residential care. I hope that the Bill will afford us the opportunity to do that.

7.35 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper)

My Lords, I am happy to confirm the full support of the Government for this Bill. It was just over a year ago in another place that an amendment to the National Health Service and Community Care Act sought to remove the exemption given to small care homes in the Registered Homes Act 1984. At that time the Government gave an undertaking to consider whether there was a way in which those issues which understandably cause anxiety could be tackled. I am therefore most grateful to my noble friend Lady Gardner of Parkes for the opportunity to mark the first anniversary of that undertaking by debating the considered and necessary proposals contained in the Bill.

It is entirely right and quite consistent with the evolutionary process that the Bill should not be a mirror image of the 1984 Act. My noble friend Lady Gardner gave the reasons for the adaptation of the provisions of that Act to suit the special nature of small homes. I am happy to endorse what she said. The Department of Health took the opportunity last summer to sound out opinion on what form the regulation of small homes should take. The result of the consultation supported an approach broadly similar to that adopted in this Bill.

The Wagner Report and local authority and care home interests recognise the need to keep the elements of the regulatory system for small homes to an essential minimum. That is not disputed even by the noble Lord, Lord Ennals. We are fully aware of the range of views people have about the possible need to impose requirements on the physical condition and structure of those homes or on the nature of the services and facilities they offer. It is my strong belief that we should do nothing to detract from the atmosphere and quality of life of a domestic home that those very small homes are uniquely able to provide. It is right that we should guard against putting unnecessary obstacles in the way of people running small homes. For those reasons I am sure that the relatively light regulatory touch envisaged in this Bill is right.

The noble Lord, Lord Ennals, referred to a proprietor who possibly had a chain of small homes. That point could be met by the procedures envisaged by the Bill. I do not see that there is any necessity, particularly if the homes are in different parts of the country, to provide specifically for that situation.

Registration will be dependent on the fitness of the applicant. The noble Lord, Lord Ennals, asked what "fitness" meant. In this case we can take the same line as the 1984 Act. After all, local authorities have had considerable experience in registering homes and have therefore evolved a measure of what fitness means in these situations. Regulation on that basis therefore tackles the principal concern and criticism surrounding small care homes and their proprietors.

There is no threat to the vast majority of proprietors; no heavy additional burdens on local authorities, but there is protection for highly vulnerable residents from risk of unsuitable and unscrupulous people setting up and running small care homes. Registration of small homes will bring them with in the scope of the arrangements introduced last month for registration authorities to be able to obtain from the police details of convictions recorded against a potential owner or manager of a residential care home. That is an important point on which considerable anxiety was expressed in this House when the subject was discussed during the passage of the National Health Service and Community Care Bill.

I am attracted also to the notion of an annual return accompanied by what I hope will be a nominal fee. Our consultation paper last year made no proposal for a review of the initial registration. At that stage we felt that a one-off event was appropriate. We were quite reasonably criticised. The registration authority would be in an uncertain position if its only contact with a person running a small home was when it handed out the certificate of registration. Something more is needed. For large homes the answer is to inspect, but that is justified in any case by the registration criteria imposed by the 1984 Act.

The modification of those criteria of the 1984 Act in this Bill removes that justification. Regular inspection is not the answer, nor would it be even if it could somehow be achieved without adding hugely to the resource implications and to the burden of compliance on home owners. An annual return, which can be a simple document but which has to be completed as a condition of continuing registration, is pitched at just the right level. Powers of entry and inspection would nevertheless be available if and when needed.

I also recognise the benefits that judicious use of power to waive fees will bring. My noble friend referred to that in particular. People running small homes may already be known to and have been approved by the local authority so that little additional action would be required on registration, giving the local authority room to waive the fee to an appropriate extent. That should help allay fears that the requirement for registration would deter those providing care on a small scale, including those already providing such care; for example, under adult placement schemes.

As my noble friend has said, the Bill gives powers for the date of coming into force to be appointed by order. Immediate implementation would not be practicable. Before registration of small homes can get under way my right honourable friend the Secretary of State will need to make regulations detailing the requirements applicable to these homes, including the maximum fee levels. We would expect to consult on this. Secondly, operators of small homes will need some time to become aware of the registration requirement and apply for registration before Section 2 of the 1984 Act bites and it becomes an offence to run an unregistered small home. This is a welcome and necessary measure. It has widespread support. I commend it to the House.

7.42 p.m.

Baroness Gardner of Parkes

My Lords, I thank those who have taken part in this debate. I wish to reply very briefly to a number of the points raised by the noble Lord, Lord Ennals. I understand and sympathise with the feelings of people who say that they would like to have full registration requirements and a full duty to inspect. That misses the point of the intimate nature of the small homes with such a small number of people in them. These provisions were specifically excluded from the original Act for those reasons. The mention made by the noble Lord of one in five homes in this country being of that type shows what an important part they play. We would not wish on any account to put at risk people who are legitimately and honestly running homes now and who suddenly found themselves so overburdened with elements of bureaucracy that they felt that they could not carry on. That would be a great loss to us.

I can understand the concern of the noble Lord's group. but that concern is not merited on the whole. I believe that the powers of entry and inspection which exist mean that the cases that are described as doubtful, or cases which people wonder about, will be drawn to the attention of the local authority either by the relatives or by local people through their councillors. Instead of placing a great additional burden on the local authority, which has its hands fairly full already, there will be a process whereby those who need extra inspection will be picked out and drawn to the attention of the appropriate concern. I believe that the provision will work quite well.

The old story about the sledge hammer is a good one. We do not want to go over the top with these regulations. It is important to insist on registration for all homes. The noble Lord raised the point of putting three people into each of five homes which adjoin one another. There have been legal arguments about whether that arrangement should be considered as one establishment and that it should have been registered. People were doing that and now that loophole is closed.

The definition of "fitness" is much more difficult. I thank the Minister for her comments on that. Like most questions of this kind, once one begins to make a definition where does one stop? One goes on and on trying to arrive at a definition, but one does not finish up with a definition which is really accurate or precise. The local authorities will get to know their people very well. The general public and the relatives will get to know people. Therefore, very quickly anyone who is unfit will be shown to be so.

I have every sympathy with the points raised by my noble friend Lady Cumberlege. However, I do not think they are relevant to this Bill. I do not think that an appropriate amendment would be relevant. I am sure that we all share her concern that people should not be allowed to live in these properties simply because they are mentally handicapped. That was a covenant attaching to the property. We are doing exactly the reverse: far from releasing covenants and removing restrictions, in this Bill we are imposing restrictions on the homes. That provides almost the reverse of the coin and that would help her. I cannot see that the Bill is the appropriate means for dealing with her suggestion. I thank the Minister for her very helpful summing up. I ask your Lordships to give this Bill a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.