Thoughts From A Health And Social Care Lawyer

Topics covered: care providers, challenge cqc, challenge fees, CQC, CQC findings, CQC inspection, enforcement action, fee dispute

Despite being an optimist I cannot help but think that the repeated claims for reform in health and social care fall in the to-do later list. Of all the challenges facing government, local and national, reforms in the health and social care sector seem to be relegated to the bottom of any list of priorities.

Recency bias is a thing and being in the middle of a cost of living crisis as a nation and being in the throes of political parties of all colours setting out their plans for the future, reform of health and social care doesn’t naturally win votes that will move the political needle either way. That isn’t to say that reform isn’t needed, because it is and by reform, I mean how providers are regulated and how care is funded.

In my day to day interactions with clients the issues that they face are almost universal. Put simply, keeping service users, staff, local commissioners and the CQC happy and balancing the books, although not necessarily in that order. One thing that I will say about care providers that I have experienced is that they are incredibly proud of the contribution they make to their service users and society as a whole. Yes, it is a business but it is a business like no other. At its heart is service and caring for people who, for whatever reason, cannot care for themselves.

The current system of regulation of care providers is very records-focused – very much in a prove it or it doesn’t exist manner. I find that the recording requirements to prove that a service is doing all that it claims it is doing is a particularly onerous task. In my opinion, requiring such a rigid adherence to record keeping is not necessarily in keeping with the provision of good quality care, particularly to residents of care homes and service users in their own homes. Now I can see the holes in this argument even as I write the same. If one were to go with my reductionist view to regulating services it may have the impact of enabling some providers to avoid the gaze of CQC since records would not exist or exist in such a small form as to render any opinion in respect of a service of even less value than today.

Proportionality speaks to the very heart of what CQC does. Arguments have been run in the court looking at CQC’s findings when looking at a sample of information from a seemingly large size. Unfortunately, those arguments have failed essentially finding that whatever sample size CQC draws upon would likely be sufficient in allowing CQC to reach conclusions on the quality of care provided by a service. Acting lawfully and acting in a manner which would be understood by the public to be reasonable are not necessarily one and the same thing. I suggest that the bar for what is deemed to be reasonable may be a bar lower than at the level that CQC presently has it set. No matter how resolute CQC may appear to be in reaching its decisions it is not beyond challenge. Providers should consider challenging CQC’s decisions in inspection reports and regulatory action taken against them with legal support in making those challenges and targeting challenges where they are best placed to encourage CQC to move their position.

The fees paid by the public purse to care providers will only continue to squeeze independent providers. Until a deal is done by the Government to sort out the funding disparity in private payers and those funded by the public purse, this matter will continue to run on and on with no resolution. Until the Government’s agenda becomes focused on funding, with no distractions, providers will continue to complain, but those complaints will fall largely to those with private funds. It is the private funders who will be answering the gap or, at least, lessen it between the fees they pay and their publicly funded equivalents, typically for the same level of care. Challenges to fees paid by local authorities also should be well thought through and supported by legal submissions both in respect of the fee and if, as can regularly be the case, local authorities are late in paying. I am also starting to see more regularly private payers challenging the legality of fee increases.  This too will have to be properly thought through to ensure that providers don’t fall foul of the competition and markets authority guidance on care home fees.

This all may appear frightfully gloomy but there is hope. I often read of providers being pushed to breaking point and a long-term settlement will have to be reached on the funding element to assure the sustainability of the provision of care in the UK. The timing of when reform will occur is the question that persists. From a regulatory perspective I do see CQC as a regulator that is reflective and is at the precipice of ushering in a new approach which should see it focusing ever more acutely on risk where it presents itself. Whether that will result in an increased propensity to take action against providers or whether, given its expected ability to inspect providers more frequently, it will reduce its enforcement action remains to be seen.

It is my opinion that CQC are likely to take enforcement action at least at the same pace as they do presently, if not more regularly. CQC may also be emboldened by its expected ability to inspect more swiftly and use this as a justification to progress more quickly down the ultimate path towards cancellation for providers who it deems at greater risk of providing negative outcomes to service users. We often find it can be the slowness in CQC action which can give providers the space to rectify any alleged concerns. If the timeframe is compacted there will be less time to evidence progress away from the point when CQC identified a concern. Care providers should interact with any enforcement action taken against it by CQC to enable them to build their defence to any alleged concerns. In our experience the best way to do this is to engage with us at Ridouts so we can provide sage advice from both a regulatory and operational perspective to protect your interests in the most effective way possible.

If you require any advice in relation to CQC inspections, enforcement action or fee disputes please call 0207 317 0340 or email

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