The CQC launched a new strategy on 27 May 2021 outlining its plans to transform the way it operates to deliver more effective regulation. It aims to move away from inspection-reliant regulation by placing more focus on data and feedback from people on their experiences of care. We know from talking to clients that the new approach creates operating risks and therefore concern.
The four key themes of the new strategy are people and communities; smarter regulation; safety through learning; accelerating improvement.
The CQC is trending towards a single new assessment framework that can be applied across all sectors including health care, social care, local authority and integrated care systems. Change was already happening but has accelerated because of pandemic. We have heard first-hand from the CQC about the direction of travel. The CQC has a limited number of inspectors, so is moving toward inspections based on risk. It cannot do this alongside a programme of regular planned inspections. Given all of this, and the CQC intention to work towards smarter and more data focussed regulation it seems unlikely the approach will move back towards pre-pandemic practices anytime soon.
What's changing?
Although the CQC will still be including on-site inspections they will be using a range of other ways to assess quality and update ratings. Services will be visited when needed in response to risk. Inspectors will focus on activities that they can only do in person, such as observing care and having conversations with care staff and service users and will likely request and inspect documentation remotely. This has a number of implications:
- Inspectors may arrive with negative expectations about a service, which need to be countered
- It may take longer to have an inspection and/or obtain a rating for a new service
- It may take longer to obtain a rating change – how is a rating improved if CQC only inspects based on risk
The CQC is alive to these issues, but there are no easy answers – hence the concerns of our clients. CQC ratings are incredibly important to providers and their businesses. The public and local authorities use them to make decisions about care providers and – especially in a risk-based inspection environment - previous history with the CQC will inform future inspection and enforcement activity.
How to get ahead
There are some simple things that can be done to proactively anticipate what the CQC will ask for and adapt to their regulatory approach. The approach is clearly going to be more reliant on data. Good providers will have accurate and easily available data which can be presented in a helpful way, with procedures in place to efficiently share it with CQC in a legally compliant and secure manner. Noting also the focus on the needs and experiences of service users and other stakeholders, and the focus on stronger safety cultures, it would be sensible to consider policies and practices showing an alignment of organisational focus to these principles.
It's also important for providers to challenge the CQC's in situations where its reports or its ratings are not an accurate reflection of the quality of the service. This is in our view more important than ever within the CQC's new risk-based inspection approach, where re-inspections and so the opportunity to improve ratings may take a long time, and where limited resources might mean the CQC takes enforcement action more frequently or for less significant reasons than might be expected.
How to deal with errors in inspection report and Warning Notices
The factual accuracy comments procedure provides an opportunity to review and comment on a draft inspection report. A response must be provided within 10 working days of receiving the draft report. The CQC has published guidance which provides that the following can be submitted as part of the process:
- Typographical or numerical errors.
- Information that has contributed to a judgement, but which is factually inaccurate.
- Additional information, or information that was omitted, which a provider thinks the CQC should consider.
This is a formal, time limited and – given the possible adverse rating and enforcement consequences - highly important process. The approach should be matter-of-fact, presenting a clear, unemotional and robust case in detail and supported by accompanying evidence.
The CQC's Warning Notice procedure can only be challenged by making representations with a view to the notice being withdrawn – there is no right of appeal. Again, this must be done within ten working days. By contrast a Notice of Proposal can be appealed to a Tribunal, but the first step is also to make written representations, here with a 28 day time limit applying. In each case, the approach should be very much in line with the above - clear, unemotional and robust, and supported by evidence.
Even if these procedures are unsuccessful, at least a provider can say that they made the arguments and did not just accept what it considered to be an inaccurate representation of the facts.
How to challenge a CQC rating
The CQC rating review procedure provides a formal mechanism for providers to challenge their inspection ratings, once a final inspection report has been published.
The only grounds for requesting a rating review are that the CQC has failed to follow its own processes for making ratings decisions. Grounds for review could include a CQC inspector's failure to respond factual accuracy comments in a reasonable way, a refusal to take into account valid evidence, or the incorrect application of its own policies. As with other elements of its policies on inspection, regulation and enforcement, the CQC should act in a proportionate manner. For example:
- policies on inspection and rating include "ratings limiters" which CQC considers to be of sufficient importance as to limit the well-led key question to "Requires Improvement". These include not taking satisfactory steps to recruit a registered manager within a reasonable timescale, where one is required. What is reasonable will differ for many reasons across different services.
- if two or more of the key questions are rated as requires improvement, then the overall rating will "normally" be requires improvement. "Normally" clearly implies a degree of discretion and a need for CQC to assess specific the specific facts of a case rather than applying a blanket position.
The submission requesting a ratings review is limited to 500 words. This again brings to the fore the need for robust, evidence-supported (and clearly also concise) responses. Time will again be essential here as there is a 15 working day time limit from publication of the report to submit the request for a review.
Other points to bear in mind when requesting a ratings review are:
- There is always a risk that ratings can go down as well – or not change at all even if the CQC accepts there are grounds for review - as up as a result of a rating review request.
- The CQC is not limited to reviewing just the element of rating a provider wants reviewed – it can review all of the other ratings in the report.
- The chances of success on a purely statistical basis are low, with nearly three quarters of social care provider reviews closed on a "no grounds for review" basis by the CQC. This suggests getting the detail of any challenge right, as outlined above, is really important.
Top Tips
- Be aware of how CQC enforces as that will allow an understanding of whether it has followed its own procedures, and of whether to challenge a decision.
- Be ready and engage early – you will need to pull together evidence and submit comprehensive responses on very short timescales.
- Be unemotional and precise – everything you say may end up in front of a Tribunal – focus on the facts (and CQC errors in them).
- If all else fails, the CQC as a public body is open to the Judicial Review process. This is challenging and should be risk-assessed before proceeding. However, for some providers it may well be a viable option.
- If unsure, take advice - we are happy to help.
