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NOTE OF DECISION WEB VERSION

Complaint no. LA/SL/858 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Jim McGuigan of South Lanarkshire Council

1.  The complaint alleged that:

(a) as a result of his participation in a B.B.C. ‘Panorama’ programme Councillor Jim McGuigan (‘the respondent’), became aware of poor standards of care being received by some residents of the Council from private sector providers, but  failed to alert Council officers so that these service delivery shortcomings could be addressed, and

(b) in the course of the broadcast he made statements which were untrue, as a consequence of which the Council and members of staff were brought into disrepute.

2. I viewed the ‘Panorama’ programme which lasted for approximately 60 minutes, and focussed on the standard of home care services provided by private companies on behalf of a range of United Kingdom social work authorities, including South Lanarkshire Council.

The perspective taken by the producers of the programme was challenging and critical of independent service providers, those who had commissioned the services, and of the structure and approach to commissioning care services and regulatory bodies in both Scotland and England.

The format of the programme also involved the deployment of ‘undercover’ carers and the positioning of concealed cameras in the homes of service users.  The material broadcast was highly critical of many aspects of the services delivered, finding fault in connection with: 

• Reliability of visits

• Length of visits

• Unpredictable arrival of carers

• Quality of attention paid to users

• Standard of personal services

• Lack of regard for personal dignity of users

• Lack of medical support

• Dietary shortcomings 

• The maintenance of standards of hygiene

• Personal handling standards

• Unrealistic scheduling of carer visits

• Inadequate recording procedures in connection with user needs, including medical history and drug administration

• Inadequate training of and on site support for caring staff, both generally and in the context of emergency situations

• Managerial supervision of services

• Injuries suffered by service users as a result of inept use of personal lifting machinery

3. The programme reflected on the procurement of home care services in South Lanarkshire, where an ‘online’ bidding system had been used as part of the selection process. A company called Domiciliary Care (latterly taken over by Choices Care Group) was described as having ‘won the auction which saw bidders bidding down, not up’. The hourly rate for the provision of care was said to be £9.95 an hour, the contract selection criteria being weighted 40% towards price with 60% based on quality of care.

4. At about 42 minutes into the programme the respondent made a short appearance answering questions and responding to prompts by the presenter. He described his perception of the ‘on line’ bidding exercise undertaken by South Lanarkshire Council, involving a competitive process designed to reduce the hourly cost charged by prospective private sector providers.

5. It was suggested to the respondent that, apart from cost, considerations of quality were also taken into account. The presenter referred to Domiciliary Care (a company which had been successful in winning a number of contracts in the South Lanarkshire Council area) as having scored ‘100%’ in relation to quality criteria. It was explained that the scoring had been based on the response from a questionnaire completed by the company. The presenter then ‘challenged’ the respondent to justify that assessment in the light of the poor performance highlighted in the programme. In response the respondent speculated that companies involved in such a tendering process might, in making a bid, simply tend to exaggerate their quality credentials especially if the responses were not properly checked. The presenter reported that South Lanarkshire Council denied the suggestion that tendering documentation was not properly scrutinised.

6. It was clear from the material supplied to me as part of the investigation that the meaning of ‘100%’ was a matter of contention. The Council’s view was that the figure did not indicate a totally satisfactory rating but happened to be a benchmark figure allocated to the bidder rated most satisfactory in relation to quality criteria, and against which other scores were compared.

7. Councillor Eileen Baxendale (‘the complainant’ and also Vice Chair of the Council’s Social Work Committee) explained that prior to her election in 2007 she had been involved at a senior managerial level in social work. She found it difficult to believe that the respondent did not know about the methods used by the BBC in making the ‘Panorama’ programme, and consequently that there were clients whose state of distress could have been alleviated by his contemporaneous intervention. She conceded, however, that she did not have direct evidence of the respondent’s state of knowledge. This part of the complaint was based on ‘hearsay’ and an inference drawn from a conversation overheard between the respondent and the Chair of the Council’s Social Work Committee some time after the programme was aired. 

8. The complainant felt that the rating of ‘quality’ in the procurement process was based largely assessment of objective matters (numbers of complaints, staffing levels, training programmes, resourcing, and history of involvement with CareCommission etc.) She further explained that the system allocated 60 points for quality to the highest ranked bidder and 40 to the lowest priced bidder. Since Domiciliary Care had scored highest on quality and was lowest on price they had been marked overall at 100, although this clearly did not mean they were perfect. It was simply a benchmark against which others were judged. On reflection she felt that a different expression of the relative position of competing companies would have avoided the potential confusion between ‘100’ as an expression of perfection and ‘100’ as a relative score. She thought that the respondent knew or should have known the difference, but did nothing to disabuse the presenter on the ‘Panorama’ from perpetuating the misunderstanding. As a result the Council and its officers had been brought into disrepute.

9. From my consideration of the evidence I was unable to conclude that the respondent was aware of the individual cases incorporated into the broadcast. For his part the respondent strongly rebutted that suggestion and the complainant conceded that her view was to some extent shaped by ‘hearsay’.  In any event, whereas the respondent undoubtedly had a scrutiny role, the sorts of omissions and impoverished levels of service highlighted in the programme were operational matters for which officers should be primarily be responsible, either through direct supervision or by ensuring contract compliance by external providers.

10. The respondent knew the ‘Panorama’ programme of 9 April 2009 represented a wide review of the standards of home care provided across the United Kingdom.The quality of life of a vulnerable group in society and the efficient resourcing of support for them were but two important themes explored. The programme was critical of the framework of home care provision, including the policies of commissioning authorities, their tendering processes and contract compliance procedures. It made trenchant negative comment about the standard of service provided by named independent contractors, including individuals previously associated with the companies. The performance of national regulatory bodies was also challenged.

11. The subject matter was clearly of public interest. A substantial number of MPs, MSPs, political parties, groups representing the elderly and South Lanarkshire residents were in contact with the Council as a result of the programme. The procurement system criticised in the broadcast is now under review at a national level. The Council itself reviewed the provision being made for its service users and, in a number of cases, replaced Domiciliary Care with another provider.

12. The respondent’s participation reinforced the general line taken by the programme. In all his contribution extended to about 30 seconds in a programme of 1 hour. Although he did not directly contradict the impression given by the presenter that the quality evaluation had mistakenly concluded that the successful bidding company was ‘perfect’, neither did he endorse that view and, in any event, the programme made it clear that South Lanarkshire Council had a different perspective on the matter. Significantly He did not directly or indirectly criticise any individual Council officer.

13. It is not my role to adjudicate on the merits of the programme as such, but it is clear that it acted as a catalyst for South Lanarkshire to review the service being provided to users. The contentious nature of the subject matter and the public interest in its exploration directly touched on issues of freedom of expression which are of particular importance to elected representatives. Article 10 of the Human Rights Act 1998 reinforces the right to freedom of expression, ‘including freedom to hold opinions and to receive and impart information and ideas without interference by public authority…...’ The subject matter of the programme was clearly important to the South Lanarkshire public as was evidenced by the reaction of individuals and their local and national elected representatives.

14. I did not consider that there was evidence to support the allegation that the respondent being aware of poor standards of care being received by some residents of the Council from private sector providers, had failed to alert Council officers, so that these service delivery shortcomings could be addressed, or that this short contribution had otherwise approached a contravention of section 2.1 of Code (the Key Principle of Duty).

15. Nor did I find the second part of the complaint (bringing the Council and its employees into disrepute) made out. The Code should not operate to curtail legitimate debate on a demonstrably important issue of public concern.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

09 October 2009