Lords consideration of the Adult Social Care Information (Enforcement) Regulations 2022 - Nov 3

Adult Social Care Information (Enforcement) Regulations 2022

Considered in Grand Committee

2.31pm

Moved by

Lord Davies of Gower

That the Grand Committee do consider the Adult Social Care Information (Enforcement) Regulations 2022.

Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee

Lord Davies of Gower (Con)

My Lords, the draft regulations laid before the House on 5 September allow the Secretary of State to impose a financial penalty on private adult social care providers that fail to submit information required under Section 277A of the Health and Social Care Act 2012 or provide false or misleading information.

This statutory instrument will make sure that the Government receive a regular, standardised and accurate set of data from providers of social care to give us an up-to-date understanding of how the care system is functioning, what problems are emerging and where those problems are. This in turn means that the Government can support providers and the social care system as a whole to serve the care needs of the population, offering people choice, control and support to live independently.

At the start of the pandemic, it became clear that, here at the centre, we were lacking up-to-date information about the functioning of the social care system, as we had no comprehensive national source of data from providers. For instance, we did not know how many people were receiving care, where they were receiving it or where capacity was in the system, and we lacked provider-specific information about the workforce.

The Government relied on data mainly captured through aggregate annual returns from local authorities and periodic returns from the Association of Directors of Adult Social Services, supplemented by state of care briefings from the Care Quality Commission and from Skills for Care on the workforce. By the time we received this sort of information it was of little use to respond to on-the-ground situations.

As an interim response during the pandemic, the Department of Health and Social Care expanded the use of the capacity tracker tool, which at the time was used by providers primarily to share information about their bed vacancy, so that we could collect the information we desperately needed to give us a picture of the front line of social care. This gave us near real-time data to manage risks and issues that were presented on the front line, but, until the Health and Care Act 2022, it was difficult to require providers to do so.

Since the pandemic, most providers have continued to complete the capacity tracker, and it has continued to be a valuable source of data. However, with the ending of the infection control funds, we have seen completion rates decline. Therefore, we have taken steps to put provider data collection on a sustainable, long-term footing through new powers inserted into the Health and Social Care Act 2012 by the Health and Care Act 2022.

The Secretary of State for Health and Social Care now requires registered adult social care providers to submit data via the capacity tracker tool. This includes data on bed vacancies, service users, workforce resourcing, vaccination status and visiting data. We recognise that data collection can be onerous for care providers and, in making this data collection mandatory, we reduced the frequency of data collections from weekly to monthly. We have also removed data fields where the information was no longer critical.

Our intention is to share appropriately collected data with organisations across the adult social care sector that need it to guide delivery, policy development and research. The information submitted will be subject to the UK general data protection regulation.

Through the 2022 Act, we can now require the information from providers. This is already in place. It is important to note that what we are debating today is the legislation to enforce that requirement. Enforcement is through financial penalties, which have been developed to make sure that the mandation of the data is effective but also done in a way that is proportionate. The draft regulations therefore cover the amount of the penalty, the service of notices, the right to make representations and the right to appeal to the tribunal. The regulations set out that the level of the penalty will be the same as a provider’s Care Quality Commission registration fee, which is scaled to provider type and size.

It is our intention that these enforcement powers are used as a last resort. A notice of intent will be given before imposing a penalty, and the provider will have the right to make representations as to why it should not be imposed. Thereafter, a final decision will be taken and, if it is decided to impose a penalty, a final notice will be given. The provider will then be able to appeal to the First-tier Tribunal—the UK courts—if it disagrees with that decision. There is also provision in the regulations for notices to be withdrawn, for the recovery of financial penalties in the county court and for a duty to review the regulations every five years.

We need these draft regulations because we need to be able to enforce the information duties created by the Health and Care Act 2022. In particular, the Act inserted new Section 277A into the Health and Social Care Act 2012 to enable the Secretary of State to require information from regulated providers of adult social care services about themselves, their activities and the persons to whom they have provided care. New Section 277E provides for regulations to be made to enforce that duty to provide information through the imposition of financial penalties. We hope, and very much expect, compliance to be the norm so that financial penalties are not required. However, a deterrent is important, and these regulations provide powers to impose financial penalties if needed.

The Government’s priority is to support providers to share their data wherever possible. The data required will be proportionate, and providers will normally be given three months’ notice of any changes to the data requested unless there are any particular extenuating circumstances. Financial penalties will normally be a last resort, for example where a provider continues to be, or is persistently, in breach of its data obligations despite multiple offers of support from our delivery partners.

So what have the Government done so far? In our data strategy, we set out our vision for how data will be used to improve the health and care of the population in a safe, trusted and transparent way. Ultimately, we want a health and care system that is underpinned by high-quality, readily available data that is collected once and shared appropriately with those in the sector who need it. This is critical to the running of our health and care services and will help to improve adult social care commissioning practice, improve outcomes for people receiving care and provide greater oversight of the sector.

I beg to move.

Baroness Tyler of Enfield (LD)

My Lords, I thank the Minister for setting out the policy intention behind these regulations; for reminding us of the very real problems that were experienced during the pandemic due to the lack of data in the field of social care; and for explaining how these regulations would operate in practice. I simply want to make a couple of general points then ask a couple of quick questions.

I am certainly in favour of better data collection in this area. In broad terms, I certainly support these regulations. It seems to me that, if we are to tackle the current crisis in social care, we need a far better picture and understanding of the sector at all levels—that is, what is happening locally, regionally and nationally. Unless we have that information in a more standardised form that people can use, it is very difficult indeed for those in the sector who need to plan and provide the higher-quality care that we all want to see. The availability of this data is absolutely crucial to both those who commission and deliver social care and those who are responsible for ensuring good outcomes for those individuals who use it.

For too long now, there has been too little information. It has been difficult to share it across the sector and it has not been standardised, which has not helped. These regulations are an opportunity to address these problems and move the dial forward, as well as improving transparency and accountability in a sector that has often felt quite opaque to many people. With this opportunity, I hope that a greater joined-upness—if I may use that term—in data collection and availability will be at the forefront of the minds of the people putting these regulations into practice. As the Minister acknowledged, the more we can have an “ask once” dataset, the better to achieve the objectives I have just set out.

I have two questions. It has always been important to us on these Benches that data collection is in keeping with the Data Protection Act 2018 and the UK GDPR. The regulations say that it will be, so that is good and proper and as it should be. But can the Minister give a specific confirmation that this will always remain the case and will not be something that a future Secretary of State might try to come back and change? If that were the case, we would not be able to continue our support of these regulations.

Finally, I was pleased to see that the fining of providers would be a last resort and proportionate, particularly to their size. Again, I query whether it would be possible for a future Secretary of State to change that without coming back to Parliament. I would worry if that were the case because, frankly, small social care providers do not have the reporting structures and the administrative support of the NHS. There needs to be some real understanding of their situation in the way that these regulations are taken forward.

Baroness Wheeler (Lab)

My Lords, I thank the Minister for introducing the SI, which sets out the process of fines, including notice periods and the right of appeal, for adult social care providers that fail to provide any or accurate information to the Health Secretary without reasonable excuse. It is important for adult social care providers to be required to supply the Department of Health and Social Care with key data and information. The use and further development of the capacity tracker, which was the only tool available to get the vital data needed during the pandemic, is a welcome step forward.

It is indeed truly striking, as the noble Baroness, Lady Tyler, said, that prior to the pandemic there was no comprehensive national data from providers on workforce status, bed availability or the number of people in receipt of care. Regularised, standardised and accurate data is vital in order to get an up-to-date understanding of how the care system is functioning. The noble Baroness, Lady Tyler, made that point very forcefully. It is very worrying that since the infection control fund ended, data completion and submission rates from care homes have declined. How are care homes to be supported in the work involved, in light of their current desperate shortage of staffing and funds?

We recognise the need to put information submission from care homes on a statutory footing and acknowledge that the SI is largely uncontroversial. It flows from amendments to the Health and Social Care Act 2012 made by the Health and Care Act 2022, as has been stated, on more extensive and accurate data provision and transparency in the sector, which we all argued for and supported at the time. Has the Minister made any assessment of how much money will be paid in fines each year? Will smaller providers definitely be able to digest government guidelines and keep up with monthly data collection? Can the Minister be sure that no care homes will be forced to shut or scale back their services due to these regulations? The reassurances that providers that do not submit data will be helped and supported and that fines will be the last resort are also welcome, as the noble Baroness, Lady Tyler, said.

2.45pm

Have the Government made any assessment of the additional costs that Regulation 8 on the appeals process could give rise to for providers appealing their fines through the First-tier Tribunal and county courts? The Explanatory Memorandum reported on the consultation exercise with the sector and its serious concerns about the existing data collection burden. It simply says:

“The DHSC long-term data strategy will address many of these issues.”

Will the Minister explain the overall approach that is being taken in the strategy which would impact on the situation, and when this part of the strategy is to be finalised and published?

The regulations will be reviewed every five years. What is the Government’s justification for this? If the regulations are not working as intended or are too or insufficiently punitive after two years, for example, what will be the opportunity to revisit them?

Having access to this crucial data will improve the ability of policymakers to judge risk in the care system, which we know to be under significant stress, but without the requisite data we are unable to make detailed assessments. We welcome the reassurance that the data will be subject to the GDPR restrictions and will be shared appropriately with local authorities and ICSs. It is also right that financial penalties, where a provider is persistently in breach of data obligations and has not made appropriate attempts to rectify that, will be scaled to the provider type and size.

We very much support the ambition of the Department of Health and Social Care to improve the accessibility of the data available to providers by linking and joining up the capacity tracker to other data sources, particularly across the Care Quality Commission and local authorities. Will the Minister update the Committee on this work? The capacity tracker data is published monthly, so we will certainly need the same transparency with the expanded information that will be obtained. The Minister’s reassurances on this would be very welcome.

Lord Davies of Gower (Con)

I am grateful to the noble Baronesses for their contributions this afternoon.

The noble Baroness, Lady Tyler, and I were on the Public Services Committee during Covid, and one thing we were very conscious about was data collection. That was highlighted on that committee, so I am very aware of the points that were raised in that respect.

On the purpose of data collection and support, as I am sure the noble Baroness appreciates, the availability of good quality and timely data from ICS providers is essential to improve the service for all users, support efficient commissioning and systems assurance and manage national, regional and local risks. The data is needed to continue to support Covid recovery, monitor vaccination levels, understand capacity and risk in the care system more generally, understand the impact of winter pressures, determine when and how to target support to providers and, ultimately, help facilitate the care of individuals across the care system long term.

The noble Baroness, Lady Tyler, asked about transparency. Our programme of work to improve data in adult social care includes updating the adult social care outcomes framework to ensure that it better captures the outcomes that matter most to people and reflects the Care Act 2014 and reform. It is used locally and nationally to set priorities for care and support, measure progress and strengthen transparency and accountability. We are developing an ISC data framework, which will start to set out what data gaps we have, our approach to addressing them, the purpose of those collections and the standards to which they are collected.

The noble Baroness, Lady Tyler, asked about guarantees for future Secretaries of State. I cannot stand here and speak for what a future Secretary of State will do but, for now, I can assure her that the data will be subject to the UK GDPR.

The noble Baroness, Lady Wheeler, asked about the burden on small businesses. We hope to see full compliance so that financial penalties are not required. Our priority is to support providers to share their data wherever possible. The data required will be proportionate and we do not anticipate it being onerous. Financial penalties will normally be a last resort, where a provider continues to be or is persistently in breach of its data obligations despite multiple offers of support from our delivery partners.

The noble Baroness also wanted some assurance on data collection. As I said, our aim is to work closely with stakeholders to identify and agree key data needs, as well as look at opportunities to streamline current data collections from ASC providers, so that data can be captured once and shared safely with all those who need it.

Another point raised by the noble Baroness, Lady Wheeler, was on fines. As I said, we hope to see full compliance so that financial penalties are not required. Our priority is to support providers to share their data wherever possible. The data required will be proportionate and we do not anticipate it being too onerous, as I said earlier.

I think that covers most of the points that were raised.

Baroness Wheeler (Lab)

I also asked about the cost of the appeal process and the five-year review.

Lord Davies of Gower (Con)

As I mentioned in my opening remarks, the appeal process is through the courts. If it would be helpful, I can guide the noble Baroness through the level of fines. They will be the same as a provider’s CQC registration fee, which is calculated based on the type and size of the provider. These are examples of fines: where the care home provider has fewer than four beds, the penalty will be £313; where the care home provider has 16 to 20 beds, the penalty will be £2,388; and where the care home provider has more than 90 beds, the penalty will be from £15,710. Here are further examples: where the domiciliary care provider has fewer than 20 users, the penalty will be up to £1,597; where the domiciliary care provider has 26 to 50 users, the penalty will be from £1,651 to £2,954; and, lastly, where the domiciliary care provider has 76 to 100 users, the penalty will be from £4,366 to £5,670.

As I mentioned in my opening remarks, details about the process of appeal are standard and set out in the relevant rules for the First-tier Tribunal, rather than in these regulations. The standard deadline for making an appeal to the First-tier Tribunal is 28 days after the decision—in this case, 28 days after the final notice.

In conclusion, we want to build a better picture of adult social care services across England so that, at the local, regional and national levels, people in the sector have the information they need to provide high-quality care and support to people who need it. These draft regulations will ensure that we continue to get vital information from all registered adult social care providers and that, where providers do not make a good-faith effort to provide the data or do not otherwise have a reasonable excuse for not doing so, they are held to account. I commend these draft regulations to the Committee.

Motion agreed.