The CQC issues a provider with a report and that report tells the world what the CQC’s opinion is of the quality of that service. The CQC controls the narrative in respect of what it deems to be appropriate to publish, subject to any comments put forward by the provider. We often find that providers can be discouraged from making comments thinking that their energies expended in making those comments may be unsuccessful. What success looks like is relative, right? Some might view success as getting the CQC to change their immediate opinion in response to any challenge. However, success should be viewed not only through the narrow prism of an immediate change of mindset but also in understanding the concerns against you as a provider and future proofing you to action being taken against you by the CQC.
How does one determine a successful challenge to the CQC, be it a report, a proposal of action or a prosecution? Often a success is not going to be all singing and all dancing, it is going to be the cessation of action against you. This may only be short-lived until the next challenge occurs and this is the simple fact of working within the CQC regulated space. Providers should appreciate that they are constantly evolving and improving and any assessment of you is time limited and you have opportunities to demonstrate improvements and be judged in kind. There will be occasions to challenge, and challenge is the accurate word, putting the CQC to proof on its assertions however there also has to be an accompanying reflection upon your practices that gave rise to the concerns raised against you.
There is a deference many providers show to the CQC in simply not challenging the CQC’s findings. This is best demonstrated by the CQC’s own statistics that were gained via a Freedom of Information Act request. From January 2018 to July 2023, of the 71,341 reports that have been produced during this time some 87% of those reports have not been challenged through factual accuracy. This may be because the provider is content with the report although we know, from experience, that some providers do not challenge reports that they disagree with. Of the 13% of reports that have been challenged on average only 9% resulted in a change to ratings. With these figures, it is not surprising that providers may lack confidence that engaging with CQC’s factual accuracy process will be in the provider’s best interests in bringing about positive change.
It is likely that the CQC interprets its statistics in respect of challenge positively and that these statistics provide it with assurance as to the reliability of its findings in its reports. That assurance we suggest is supported by the relative absence of challenge. Some may state that the apparent lack of challenge is owing to providers agreeing with CQC’s findings. We have come across many cases where providers do not challenge the content of reports, and ratings, not because they agree with the findings but because they do not feel confident that the CQC will pay due care and attention to any objections that are raised. This lack of challenge is not limited to those providers who attract the lesser ratings but it is across the board. Challenges to reports do not exist simply to the ratings awarded but also to each specific finding contained within a report. Providers who elect not to challenge an inspection report because the rating awarded is sufficient to them may allow a criticism believed by the provider to be unjustified to stand. This could have the knock-on effect in follow up regulatory action and return inspections if the alleged criticism has not been addressed or engaged with by the provider at source. This lack of challenge does not in our opinion strengthen the reliability of the CQC’s findings in its reports.
The CQC is at the precipice of change in the way it performs its regulatory duties and the question remains open as to whether the changes being brought in will increase the reliability of the decisions that the CQC makes? Would a person, when presented with the evidence upon which the CQC has sought to rely on, reach the same conclusions? It appears that the CQC, with its new way of working, intends to be more transparent in the manner in which it reaches its decisions by providing the rationale as to how it scores each evidence category and how that in turn feeds into an ultimate rating for each key question. The cynical amongst us may say that the CQC is bringing this information into the public domain to effectively reduce the ability of providers to challenge CQC on its findings. Simply opening up the workings of how the CQC reach its decisions, be it in respect of how the scoring of evidence will be aggregated or the way in which the risk profile of a service changes, doesn’t make the findings upon which the CQC rely any more reasonable nor reliable.
Taking a look at CQC’s own statistics in challenges to inspection reports it does not make for a positive read if success to a provider is to be perceived by a direct uplift in ratings. I salute more to those providers that seek to raise factual accuracy comments to CQC because they are testing both the CQC’s approach and their own practices. There are so many providers who let reports wash over them not only without responding in kind but also in failing to understand what CQC’s concerns are against it. This inaction may make it more difficult for providers to respond should CQC progress through its regulatory toolkit and seek to take more severe action for concerns it has against a provider.
We were taken aback recently in hearing that some banks would not lend to providers who have been rated as requires improvement in particular. Those not attuned to the way in which reports are drafted and the sometimes scant information upon which ultimately reaching a rating is based, may place an elevated level of importance on CQC inspection reports. There are questions to be answered in respect of the veracity of enquiry of those tasked with drafting and reviewing findings of inspection reports. The providers voice can be crowded out of any rating as challenges that are put forth can quite simply be batted away by the retort from the inspector “but this is what we experienced on the day.”
Providers need to take ownership of two things: challenging CQC’s findings where they lie – we always recommend using the factual accuracy process, but also following receipt of the CQC’s response. The strongest position from which to challenge is with incontrovertible evidence which upsets the basis for the CQC’s findings. Engage with the factual accuracy process and support it with the strongest evidence that was in place at the time of the inspection but your defence should not cease there only. When we speak of reclaiming the narrative we find that it would be helpful for providers to draft an up to date punchy reply to the CQC’s report which speaks to the position following the receipt of the report. In that account you can detail the steps that have been taken following the CQC’s visit. In so doing you will be providing stakeholders with an up to date account as to the accurate position as at the day that the reply to the CQC’s report is drafted. In such an exercise this will involve a dispassionate review of the concerns that the CQC have highlighted in the report and dialling in on the concerns, accepted or not, to improve your position.
We are well placed to support CQC registered providers with presenting providers with advice and support pursuant to making successful representations to CQC against inspection reports and any action CQC elects to take. If you would like to discuss any CQC related matter with us at Ridouts please do get in touch at info@ridout-law.com or 020 7317 0340.(or regulatory action)should be made not only where ratings are This lack of direct reply to the CQC’s reports can be interpreted many ways but in our experience ratings important though they are only tell a small part of the story.
