Agenda item

The motion was moved by Councillor Bell and seconded by Councillor Curran.

Legal advice on the motion was tabled by the Head of Law as follows:

“Head of Law’s advice in relation to the following motion and the first proposed amendment to it (proposed by Councillors Maines and Griesenbeck)

“In the light of serious concerns regarding the care provided by some private providers, this Council calls on the Executive Directors for Community Services and CYP to immediately implement a programme of non-announced inspections of all care homes providing residential care facilities for people with disabilities and the elderly.”

When Council debates motions, my general approach is to advise that they be allowed in if possible to facilitate the fullness of debate.  There are two types of motion – those that would commit the Council to take some action, and those that have more general applicability without commitment on the Council’s part.

Where a motion falls into the second category – for example a motion which  condemns action by say British Rail or the Post Office, they are essentially political in nature, express political opinion and do not bind the Council to act.  No specific analysis of corporate, legal or financial implications is necessary. 

Where the Council would be committed to do something then a proper consideration of matters affecting the decision needs to be made.  This motion and the first proposed amendment  fall more closely into the second category and there are the following legal implications:-

(1) The Council has no statutory basis to carry out any inspections of residential homes generally.  That function lies with the CQC and we have no power to intervene. 

(2) We do have monitoring powers in relation to homes where we have commissioned the service, but these provisions are to be effected in accordance with the contractual provisions.   They are not the same things as CQC inspections and the only powers we would have would be under the contract , save of course to report appropriate matters to the CQC where concerns arose.

(3) We do have social work powers of course but these relate to the assessment of individuals for social care purposes not for spot inspections of care homes.

(4) People resident in the homes have a right to privacy generally but especially where we are not commissioning their residency, and we have no right whatsoever to interfere in their private arrangements where we have no statutory function. Where we do not commission the places, the provider would not even have to give us access to the premises for the purpose of inspection.

(5) Our insurers are likely to have views about our potentially assuming liability where we have no role.

So if the motion, whether as originally drafted or as amended in accordance with the first proposed amendment, were passed, I would have to advise that it could not be implemented in any event.”

Following receipt of the legal advice, Councillor Maines expressed disappointment that he had not been briefed earlier and he withdrew the amendment he had submitted to the motion.

Councillor Hall then moved, and Councillor Daby seconded an amendment to delete all of the original text and substitute it with the text shown in the resolution below. Following contributions from Councillors Britton, Griesenbeck, Maines, Klier, Fitzsimmons, Muldoon, Best, Jacq Paschoud and the Mayor, the amendment and then the substantive motion was unanimously agreed.

RESOLVED that the following motion be agreed:

“In light of the serious concerns regarding the care provided by some private providers, this Council calls on the Executive Directors for Community Services and Children and Young People to advise on the measures being taken to ensure the quality of care provision in all care homes used by the borough and calls upon the Care Quality Commission and OFSTED to implement a programme of non-announced inspections of all care homes providing residential care facilities for people with disabilities and older people.

Furthermore, it calls upon the Healthier Communities Select Committee to undertake a review of Lewisham's commissioning, monitoring and the arrangements for the inspection of these services.”