My Lords, the quality of the provision in old people’s care homes varies widely. In the best of them, the residents are treated with respect and solicitude. In the worst of them, as we have witnessed recently, they are treated callously and brutally by underpaid and badly trained staff.
The increasing longevity of our population is leading to a rising demand for the provision of care for the elderly. Until recently, the implications of these developments have been ignored by all but a few concerned parties. The matter was brought forcefully to the attention of the public at large by the financial collapse of the Southern Cross enterprise, which was responsible for at least 20% of the national provision of residential places in care homes. It was running 752 homes when it collapsed in 2011 with losses of £300 million.
Southern Cross had been acquired by the private equity firm Blackstone Capital Partners for £162 million in 2004. Thereafter, it expanded rapidly. Through acquisitions, it tripled the number of homes that it was managing. The directors became multimillionaires. Inspections that were conducted during the period of its expansion raised grave concerns over the provision of care by homes within the Southern Cross portfolio. Indeed, the enterprise was warned about failing standards in its homes as it prepared to float on the stock market.
A more dramatic instance of the failure of care was provided by the scandal of Winterbourne View, a public-funded private hospital. A “Panorama” investigation broadcast in 2011 exposed the physical
and psychological abuse suffered at the hospital by people with learning disabilities and with challenging behaviour.
The problems besetting care homes have been due, in part, to the inadequacy of their regulatory oversight. They have also been due, in large measure, to the increasing financial stringency under which they are operating. The income received by the homes from fees has been falling. Those fees have been paid on behalf of the great majority of residents by local authorities. Their income has been driven down by the Government’s austerity measures. At the same time, their costs have increased through factors outside their control, such as rising energy prices.
Another adverse condition is that the borrowing of the care home sector averages 75% of its net assets. This abnormally high level of indebtedness has been a result of the borrowings that were linked to the spate of acquisitions that preceded the general financial crisis of the sector. It has been pushed even higher by trading losses. This will expose the sector greatly to the widely anticipated rise in interest rates in the not too distant future.
The Government have reacted to these problems in a manner that many people regard as inadequate. They have not sought to improve the financial circumstances of the care homes. Instead, they have sought to improve the regulatory framework affecting the care homes via amendments to the secondary legislation associated with the Health and Social Care Act 2008, which will come into force in April 2015.
According to the testimony of the Minister of State for the Department of Health in the Commons on 16 October, the new regulations will,
“bolster the power of the regulator to take enforcement action, including bringing prosecutions against providers of poor care”,
and issuing penalty notices.
He remarked that, under the existing regulations,
“a notice had to be served first before moving to prosecution. If the provider complied with the notice, nothing could be done”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 16/10/14; col. 4.]
The essential purpose of the new regulations is, therefore, to encourage improvements in the quality of care by strengthening the sanctions for failures.
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Some additional provisions in the new regulations should also be mentioned. One much vaunted provision introduces a duty of candour, as we have heard, which is intended to facilitate the inspection regime. Another provision is a fitness test for directors of NHS bodies. That the test does not apply to the directors of other bodies concerned with the provision of care to the elderly appears to be a major lacuna. Finally, there is an allowance for the Care Quality Commission to publish ratings of care providers, which would be analogous to the league tables of schools.
The new regulations have been influenced by the Government’s overarching philosophy of deregulation. Certain duties that were imposed by the previous regulations have been omitted. It has been claimed that these omissions have been in pursuit of simplification, that existing regulations are overbureaucratic, and
that they do not separate what is essential from what is merely desirable. Guidance will be offered in place of what have been deemed to be inessential regulations. Standards that were previously mandated by the regulations will now have the status merely of advice.
The claim that this will lead to simplification is belied by the nature of the voluminous and ill crafted advice of the Care Quality Commission. The inevitable result will be confusion and partial compliance. Moreover, it is doubtful whether, in such circumstances, the added threat of prosecution will be effective in raising standards.
We have been alerted, as we have heard, to some major lacunae in the revised regulations. Care homes will no longer be required to tell their residents about the existence of a complaint procedure. They will not be required to plan for and to have in place an emergency procedure. They will no longer be required to give residents a choice of food. A careful deconstruction of the revised regulations will doubtless expose many other omissions.
The new regulations reflect a very different philosophy on the part of the Government from the philosophy of our party. The Conservatives tend to characterise rules governing social provision as impediments to enterprise and initiative. Many on our side hold an opposite view. Such regulatory provisions as the ones we are now considering are seen as reflections of our social aspirations. They serve to define the civilised standards to which we feel bound to adhere.
The removal of a regulatory framework is liable to inflict significant damage on our society. A good example of this, on a practical level, has been provided by the Government’s National Planning Policy Framework. This replaced more than 1,000 pages of guidance and regulations with 50 pages, written simply and clearly, that were aimed, so it was claimed, at allowing people and communities to participate in the business of planning. In reality, a set of sophisticated and carefully crafted documents, which had provided policy guidance in many specific circumstances and which had been developed and refined over the past 25 years, has been tossed into the rubbish bin, to be replaced by 50 pages of vacuous pieties. The same damage is being inflicted on the regulatory framework governing the provisions of our care homes. We believe that it is not too late for the Government to think again.