An Unexpected Foe: Coping with a Commissioning Body’s Reaction to Adverse Regulatory Action 

Topics covered: appeal, challenging cqc, commissioners, CQC enforcement action, Regulatory Action

Providers of health and social care services are all too aware of how vital their relationships are with stakeholders. Often they prioritise their relationships with the CQC or Ofsted because regulation underpins all other areas of service provision, however, providers should not underestimate the enormous impact local authority / CCG commissioner relationships and interactions have on commercial and reputational standing.

We at Ridouts have worked on multiple CQC and Ofsted regulatory cases where services have suffered additional aggression at the hands of representatives of the commissioning body. As such, we are familiar with how best to deal with the unexpected outcomes that may arise when providers are already under pressure from a regulator.

We work closely with providers to communicate directly with commissioners when they are placing unreasonable or undue pressure on a provider at times of regulatory crisis. Managing these communications are crucial, especially when those communications are aimed at vulnerable people, their families and staff uncertain of their future job security.

The Commissioning Body’s Role in CQC and Ofsted Regulation and Enforcement Action

The consequences of a negative CQC or Ofsted inspection report or more serious enforcement action perpetrated by the regulator, are unsurprisingly serious in nature. However, health and social care providers need to be aware of the knock on effect at their commissioning body.

In the event of a negative inspection report and a poor rating, the commissioner will be contacted by the CQC or Ofsted to inform them of the outcome. Often the regulator shares this message before a draft report has been finalised and the contents challenged through the factual accuracy process. This is deeply frustrating where a provider feels that the rating is unfair and the content of the report unreliable or flawed. Once the commissioner receives word of a negative rating the reaction will largely depend on the provider’s history with the commissioner and more subtly, the commissioner’s agenda towards the service type more generally.

If the provider has a positive relationship with a commissioner then they may wish to set out the context of any challenge that they have submitted with the regulator, putting any negative assertions into perspective and setting out the concerns that the provider has with the report and subsequent rating. If the negative report is truly reflective of the service, then the provider may wish to allay any concerns with the commissioner by setting out their action plan and commitment to improvement.

There have been occasions where the commissioner has used a negative CQC or Ofsted report to justify taking action against the provider, either by commencing its own quality assurance review, placing an embargo on the service or, in extreme circumstances, terminating the placement contract.

Much of the work performed by a commissioner’s quality assurance team replicates the regulator’s own approach. This can result in high levels of duplicative work for a registered manager, who will inevitably be consumed by providing similar evidence to two different organisations that require it to be presented in slightly different ways. Any failure to provide assurance or convince the commissioner that the service is in fact performing well could result in drastic action.

Of course, any action that the commissioner takes against a provider in these circumstances must fall in line with the terms of any agreement that is in place. We therefore alert providers to any provisions in their contact that relate to quality monitoring and the situations in which the commissioner can change or even terminate an agreement. If action is taken by the commissioner outside the terms of such an agreement, then the provider may consider taking action against a commissioner for breach of contract.

When a provider is subject to more serious enforcement action, for example, proposed cancellation of registration, the commissioner’s interest will almost certainly be piqued. Cancellation will, naturally, have an impact on the commissioner who will be conscious of the impact that any cancellation and resultant closure will have on the service users that they place in a service.

We have seen polar opposite responses over the years. Often the commissioner is wholly supportive of a struggling service facing enforcement action. Support is offered and engagement increased. In more unfortunate cases, the commissioner panics and withdraws its confidence, taking the form of a cessation on placements or even, in extreme situations, cancellation of contract and withdrawal of its service users.

It is absolutely crucial to understand that the CQC and Ofsted will be in direct contact with the commissioner during any enforcement process. It is equally vital to keep all enforcement action taken in perspective during conversations with the commissioner. All too often have we seen representatives of commissioning bodies completely misinterpret the action that the regulator is taking. More often than not, the CQC or Ofsted will make a proposal to take any action which is fully challengeable through a set process. Even when a decision is made, providers have the option to appeal to an independent Tribunal – meaning a decision will not take effect until that tribunal has been heard, many months into the future, and only if the tribunal agrees with the regulator. On this basis, no action taken by the CQC or Ofsted is a foregone conclusion when it starts with a notice of proposal.

Even Urgent Action Taken by a Regulator is Open to Appeal

Unfortunately, this nuanced process is often misunderstood by representatives of commissioners who are not au fait with the regulatory regime. We have seen numerous occasions where social workers, having received word that a regulator has issued a notice of proposal to cancel a provider’s registration, steam roll into a service to announce to all of their service users that they are being removed because the home is closing. That messaging is not only factually inaccurate and not reflective of the position (because at that point the proposal is fully open to challenge and will not take effect if a challenge is submitted) but it is also deeply damaging and destabilizing to service users and their families. The social worker has completely misunderstood the process and has simply panicked and decided to take it upon themselves to start the process of removal before the CQC or Ofsted closes the service, as if that were a guaranteed outcome. In actual fact, most notices of proposal to cancel a registration do not result in closure. Services tend to make the necessary improvements with operational and legal support and the matter is resolved before it gets anywhere near a judge.

If social workers or other quality assurance staff at a commissioning body engage in this kind of misinterpretation and inaccurate and sensational propaganda, then they should be taken to task immediately on the basis that the statement is untrue and has the potential to cause emotions, reputational and commercial damage.

Positive stakeholder relationships are a balancing act and each party will have differing agendas and requirements. Providers should carefully manage reactions from commissioners when they are faced with regulatory action or an adverse regulatory response to inspection.

Ridouts encourage providers to review all agreements when commissioners take any action. We would empower staff to challenge any inaccurate messaging circulated by representatives of the commissioner that do not correctly represent the situation. In these scenarios it is vital that the service provides its own clear channel of communication with service users and their families so that the correct message is delivered and that all parties understand whatever regulatory process the provider is engaged in and how that might impact them.

If you are experiencing any regulatory or commissioning issues, then speak with Ridouts on 0207 317 0340.

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