Since the introduction of the CQC rating system in 2014 there have been various revisions of CQC’s guidance to providers on how it monitors, inspects and regulates adult social care services which impact how CQC makes judgements and how providers can challenge these.
It is important for providers to challenge factual inaccuracies and misleading comments presented in draft inspection reports to ensure an accurate picture of a service is communicated with the public and commissioners. If errors are not challenged, these will be deemed to be correct by CQC and any perceived areas of non-compliance can lead to the requirement for the production of action plans or, in more serious cases, use of CQC enforcement action. Adverse ratings can have a negative impact on the financial viability of a service should the local authority, CCG or privately funded individuals be dissuaded from using a service as a result. Providers should therefore ensure they read their draft inspection reports thoroughly and, where relevant, make challenges through CQC’s formal processes as described below.
Frequency of inspection
The frequency of inspections is partly dictated by the rating provided during the previous comprehensive inspection. For Good or Outstanding services, having up to 30 months of that rating is positive, but for Requires Improvement or Inadequate services, having a rating for up to 12 months and 6 months respectively, it is potentially damaging.
The clock starts ticking after publication of the final comprehensive report, rather than from the date of the last inspection. Some providers therefore question whether they should stay quiet in order not to delay publication by way of challenge, and therefore start the clock ticking sooner. This is short sighted for the reasons noted above. In any event, Ridouts has often pushed CQC for a quicker follow-up inspection where a provider can demonstrate improvements or changes, with success.
Factual accuracy comments (“FACs”)
Following inspection and receipt of a draft inspection report, providers have 10 working days to submit any FACs to CQC. This is not a long period of time and providers should act promptly. Providers should not only challenge the accuracy of facts, but also challenge judgements and ratings where relevant. Where possible, providers should supply evidence to support their assertions. This will strengthen their challenge.
Since the introduction of ratings, CQC has made it harder for a provider to achieve an overall Good rating. A service cannot usually be rated as Good if there are any regulatory breaches referenced in an inspection report, even if the usual aggregation of ratings suggests that the service should be Good overall (i.e. being awarded four Goods and one Requires Improvement in the five-key question). Therefore, if a provider wants to achieve a rating of Good overall, they must address any alleged regulatory breaches noted in the draft inspection report at the FAC stage.
FACs will be considered and CQC will provide a written response to providers, along with a final version of the report. Be sure to check any agreed changes have been incorporated as sometimes they are not transposed into the final report. The final inspection report is usually published within a couple of days of communication of CQC’s findings. However, CQC is not consistent in its approach. We have seen instances where publication has taken place the same day the FAC response was sent to the provider and before the provider has had the opportunity to review. Ridouts has previously taken issue with this process as CQC’s rush to publish reports can have an adverse impact on providers who are considering further legal challenge, for example through injunctive relief.
What can you do if CQC have not considered your FACs or evidence sufficiently?
In the case of R (on the application of SSP Health Limited) v CQC (July 2016) the presiding judge stated that there should be an independent person introduced as part of the CQC FAC process to review providers submissions. The judgement stated:
“there is an obligation on the CQC to carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to do so by the inspected entity, if the ground of complaint is that a fact-finding maintained in the draft report is demonstrably wrong or misleading.”
Ahead of SSP, Ridouts was already asking CQC to re-review its client’s submission if it was thought that proper consideration had not been given. However, in light of the High Court ruling CQC reviewed its FAC process which now includes an internal ‘Quality Check’ whereby each report is quality assured by peer review. CQC guidance states “the factual accuracy process is part of this quality check and means that provider responses are considered independently”. However, this review is being carried out before the provider has had the opportunity to see CQC’s response to their FAC’s. It is unclear what the ‘quality check’ entails – is it a forensic analysis of evidence or a quick review to make sure the report reads well? CQC is pre-empting any request for independent review and shutting down the request by already having the foresight to review “independently”. This cannot be right. Should there continue to be factual errors that are demonstrably wrong or misleading, then a further review should be requested. Indeed, CQC has been known to agree to requests for an independent review in the past but again, there is a lack of consistency in CQC’s response to such requests. In some instances, requests are considered at a local level by the inspection team who carried out the original inspection. Due to their involvement in the inspection and production of the associated report, it is unlikely they will be able to remain independent in making decisions relating to criticisms of their own work. This highlights the importance of escalating such requests outside of the original inspection team. At times, if a request is allowed, a person in a different region or area will carry out the review. Frustratingly, sometimes providers are forced to begin proceedings for judicial review before CQC will agree to carry out an independent review at the providers request.
Providers should appreciate that the independent review should not be seen as getting ‘two bites of the same cherry’. Instead, providers should concentrate on FACs that were originally submitted but have not been taken into account appropriately through the final report. CQC is not obliged to take into account new evidence or comments that were not submitted initially.
Remember, that at any stage of review, ratings can go down as well as up. Therefore, providers should be clear about the evidence they are submitting.
The final opportunity for providers to challenge the findings of an inspection through CQC’s official processes is the rating review procedure. Providers must inform CQC of their intention to submit a rating review request within 5 working days from the date of publication of the report. Providers must submit their full, detailed request for a review of ratings within 15 working days of publication.
CQC requires providers to limit their rating review requests to 500 words across all the ratings they wish to challenge. The restriction is arbitrary and could open up a potential public law argument if providers are unable to properly get their case across within the limited word count.
The rating review process does not re-consider any factual disagreements or disputes over CQC’s judgements. CQC is clear that the only grounds for requesting a rating review is that they have failed to follow their processes for making ratings decisions (i.e. the application of the ratings characteristics). This process can be difficult to demonstrate and published CQC figures on the success of rating review challenges shows that that vast majority of such challenges fail.
In any event, rating reviews take place after publication of the inspection report. For providers who want to avoid misleading ratings being published in the first place, the FAC process is crucial.
Complaints to CQC
Many providers contact us stating they want to complain to CQC about the content of their inspection report, rather than submitting FACs. If there are any concerns about the factual accuracy of a report, these must be submitted through the FAC process, otherwise they may not be considered by CQC. Complaints about inspector conduct during the inspection can be raised in the FACs but should ideally also be submitted as a separate complaint. As CQC treats its complaints process independently, complaints run as a separate process to the FAC response. This means that even if your complaint is based around an inspection that resulted in the production of a flawed report, CQC’s complaints process is unlikely to consider the FAC response. The timeframes for these processes do not match up and in many instances CQC has proceeded to publication of an inspection report following completion of the FAC process despite an open complaint being considered by the complaints team in relation to the same report. Clearly the two processes impact on each other and therefore this is a flawed process.
To avoid the potential adverse impact of having an incorrect inspection report placed in the public domain, providers should robustly challenge their draft inspection reports supported by evidence to stand the best chance of making changes at the earliest opportunity.
At Ridouts we are experienced in supporting clients with responses to draft inspection reports and empower them to challenge CQC when a report is not truly reflective of their service.