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Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2022

Volume 818: debated on Tuesday 8 February 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2022.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee

My Lords, this statutory instrument will amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The 2014 regulations are currently due to expire after 31 March this year, and this statutory instrument will amend the expiry date to 31 March 2025. This is the only change this statutory instrument makes; it does not change any existing policy. The 2014 regulations set out the activities that are regulated by the Care Quality Commission and the fundamental standards that all CQC-registered providers need to comply with. These activities and standards will not be amended by this instrument.

The extension of the 2014 regulations to 31 March 2025 will ensure that the current regulations relating to CQC-registered providers, including which activities are regulated by the CQC, will continue to apply. There will be no change to how the CQC carries out its regulatory functions. The Government see the CQC’s role as critical in ensuring that the care received by patients is of high quality and delivered to standards that promote patient safety.

I should highlight that if we do not extend the expiry date, the 2014 regulations will automatically expire and there will be no regulated activities for the CQC to regulate, so providers who are currently required to register with the CQC will no longer be required to do so. Providers that are currently required to register with the CQC will also no longer be required to comply with the fundamental standards set out in the 2014 regulations, which help to ensure that services are carried out safely and to a high quality. The impact of not extending the regulations would be a risk to patient safety, as it would compromise the CQC’s ability to monitor providers against those fundamental standards.

In short, this SI will amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 by extending the expiry date by a further three years to 31 March 2025. This means that health and care providers in England that carry out any of the regulated activities set out in the 2014 regulations will continue to be required to register with the CQC and will be bound by the obligations and standards set out in the 2014 regulations. This will help to ensure that patients continue to receive safe and good-quality care.

My Lords, first, I thank the technical wizards who have mended the problem with the link to the Grand Committee so that I can contribute remotely. This sort of thing happens only very occasionally, and the smoothness with which most of the business goes on is extremely helpful. I am very grateful to them.

The Explanatory Memorandum says that these regulations are to ensure protection from Covid, and the Minister has explained why there is a requirement to extend the deadline for the department to carry out a review of the CQC regulations. However, why are a further three years needed? Perhaps he can explain how there will be accountability between now and then to enable the House and Parliament to see the progress. Given that we are talking about three years, will he undertake to provide your Lordships’ House with an interim report on progress? If it takes the full three years, can that be on an annual basis?

Finally, and perhaps most importantly, can the Minister outline how the review fits in with ongoing reforms such as the Health and Care Bill, which will come to the end of Committee tomorrow, and other social care reforms? Will it keep pace with all those new developments?

I want to add one other item. The Minister knows that, when we had the Statement in the Chamber last Thursday, I asked him why care homes had not yet received the details of the change of rules about the compulsory vaccination of staff. He kindly said at the Dispatch Box that he did not have the answers to hand but would write to me and my noble friend Lord Scriven, who also asked questions about this that day. I do not appear to have had anything. Given that this covers care homes and keeping patients safe, I wonder whether I can ask again.

On Wednesday afternoon, the director-general for adult social care wrote to providers of CQC-regulated adult social care activities about the removal of vaccination as a condition of deployment. Unfortunately, the problem is that it specifically excludes care homes. I believe we know that the problem exists in regulations that need to be revoked, but can the Minister explain to the Grand Committee exactly what the problem is? Clearly, reading that letter from the director-general at face value, care homes are sitting in a limbo which no other parts of the NHS or the wider settings for care are in, in that they should be applying compulsory vaccination.

The Minister said on Wednesday that the intention was quite clear. Unfortunately, this affects care homes, because it is to do with employment law. I know that some care homes have already been approached by staff they had to sack, asking whether they can have their jobs back, while they are still waiting to hear formally from government about when the revoking of the regulations will come into force. I hope the Minister can answer my question on this.

My Lords, I thank the Minister for introducing this SI on Care Quality Commission registration, somewhat at the 11th hour before the current 2014 regulations run out on 31 March 2022. Of course, we fully support their extension beyond that date so that all providers of health and social care in England will continue to be required to register with the commission and to comply with the high patient safety and care quality standards it sets.

The SI is very brief and to the point, with the proposed extension to 31 March 2025 the only amendment to the 2014 regulations, and the activities regulated by the CQC and the fundamental standards with which all CQC-registered providers must comply all unamended and unchanged.

Like the noble Baroness, Lady Brinton, I fully understand the impact of the pandemic on the CQC’s capacity to undertake the full range of its work, but the Minister needs to explain why the extension of the regulations is for another three years, to 31 March 2025. Why so long? The Explanatory Memorandum says the extension is to

“allow the Government to review the 2014 Regulations to determine”

whether the scope of its current regulated activities

“is still proportionate to ensure that regulated activities are delivered safely to a high standard.”

The CQC’s role as regulator and the fundamental standards that it sets to ensure high-quality care are crucial. According to the Minister proposing the SI in the Commons on 26 January, time is needed

“to reform and consider the regulations more fully”.—[Official Report, Commons, 26/1/22; col. 8.]

This is a major review being undertaken by government, and we need to know much more about its extent and purpose. Why are three more years necessary to undertake this review? Can the Minister explain why, given its vital importance, the review cannot be undertaken in a shorter timeframe? What are the timescale, scope and terms of reference of the review? How are all stakeholders, including providers and patient organisations, to be consulted and involved?

As the Minister knows, under the Health and Care Bill currently in your Lordships’ House, the CQC is to take on the not inconsiderable additional duties of reviewing and assessing ICBs and the performance of local authorities in the delivery of adult social care. To what extent will consideration of the impact of this extended role be included in the review, including the significant additional resources that the CQC will need to undertake these new areas of responsibility?

We are less than two months away from when the current regulations expire, and we fully recognise the urgent necessity of this SI to ensure that the CQC’s vital role and that work will continue. I also look forward to the update that the noble Lord will provide on the questions raised by the noble Baroness, Lady Brinton, about care homes and last week’s decision on the mandatory vaccination of staff.

My Lords, I thank both noble Baronesses for their questions and I must say how grateful I am that we were able to find a way for the noble Baroness, Lady Brinton, to join us after a technical fault. I turn now to the questions asked and, if I do not have the answers, I will commit to writing to the noble Baronesses.

The noble Baroness, Lady Brinton, asked why it had taken time to lay these amending regulations to extend the date of expiry of the regulations. They came into force in 2014 and a further amendment was made in 2015 to include an expiry date for them. Once it was identified that the 2014 regulations needed to be amended to extend the expiry date, the department took the appropriate action to make the necessary change. However, to make that change there was a long lead-in time, involving a consultation process and securing parliamentary dates to debate the amendment. The department is aware that, since the 2014 regulations came into force, there have been a number of changes in the health and care sector, and any wider review will be subject to a public consultation.

The noble Baroness, Lady Brinton, also asked about vaccination as a condition of deployment policy in adult social care settings. Let me turn, first, to her specific question. After the debate the other day, the noble Lord, Lord Scriven, told me that he needed to clarify a question he asked of me. He very kindly emailed me, clarifying that what he had said in the Chamber was not necessarily absolutely correct, and I sent his email on to my officials. I am sorry, I had not realised that a response had not been given. All I can do is apologise, go back to the department and make sure that we get an answer to him as soon as possible. That is why, to be perfectly frank, I am not in a good position here, because I really did think that this had been dealt with, and I apologise for that.

The noble Baroness, Lady Wheeler, asked several questions about the department’s intention to carry out a post-implementation review of the 2014 regulations. The department intends to carry out such a review and is currently working with the CQC to develop the review questionnaire, which will be shared with health and social care providers. The department is in the early stages of undertaking work to carry out the review, and we have already started working with the CQC. Once we have the responses to the questionnaire, we will publish a post-implementation report setting out the department’s findings.

The noble Baroness, Lady Brinton, also asked about VCOD. One of things we should stress—I know all noble Lords agree on this—is that patient safety is key. We always put the safety of vulnerable people first. I am very grateful to noble Lords for their support for the VCOD policy.

We felt it was right when we brought it in for care homes, and then extended it to the wider care sector. Given that delta has been replaced by omicron, it was only right that we reviewed the data and the evidence, and also reviewed the policy. As I said, I am afraid I do not have a detailed answer to the question at the moment. All I can say on why we have asked for three years is that I did ask the officials why three years, why not a year or two years, given the Health and Care Bill and the additional responsibilities that will fall on the CQC when it comes to that Bill, and they said generally that they needed three years for the long process, the lead-in and the consultation, and also to take account of the wider review. Next time it will not simply be an extension of the current regulations; the wider review will take account of what new duties are placed on the CQC, as a result of the Health and Care Bill.

I am afraid—and I really apologise for this—that I do not have the best answers for this at the moment. I will have to write in more detail to the noble Lords who asked questions.

My Lords, I thank the Minister for his response. Specifically on the review into the CQC’s work, I did ask for the terms of reference. I know there is going to be a consultation and a questionnaire, et cetera, and I would like to know what the terms of reference are: the timeframes and the scope of the review, and how stakeholders will be involved—I hope it will be not just by a questionnaire.

The noble Baroness asks a very reasonable question. I think what I will have to do is look at Hansard and respond to her detailed questions, and also share a copy with the Library, because I do not have the detailed answers with me today.

Motion agreed.