Another appeal against a CQC decision to refuse an increase in service user numbers in a LD home was dismissed last week.  As ever, CQC made the decision applying its Registering the Right Support guidance.

There has still  been only one successful appeal so it’s an uphill struggle to win such cases.

In this case, the Tribunal said: “The central and fatal omission … was the lack of objective evidence in support of the proposed model of care as the guidance, rightly in our view, demands if larger settings are to show they are as capable of delivering best practice as smaller settings”.

The Tribunal was also impressed by emails of support  from commissioners but regretted not being able to question them about their views.  No doubt many commissioners would be reluctant to put their heads above the parapet to that extent.  However, in the absence of live evidence, it seems the Tribunal will only attach limited weight to commissioners’ views.

The case  highlights that providers who have obtained expert evidence in support of their model of care and who are able to persuade commissioners to give evidence, stand the best chance of success.   These are points I made in my earlier analysis of Tribunal decisions in this area – see here for more detail on how providers can maximise their prospects of success when applying for an increase in service user number.

The full decision is available here.

 

 

 

How long do you have to be Good before you are rated as such?  The question arises from a common frustration in the sector.  A provider may temporarily drop the ball in relation to a service that results in an Inadequate rating.  The provider accepts the rating and does everything necessary to raise standards.  Often, that will include a change of manager and tightening of quality monitoring systems.  CQC returns within 6 months and recognises the improvement.  The content of the report couldn’t be more glowing.  However, CQC rates the service as Requires Improvement on the basis that not enough time has elapsed since the last inspection for the home to demonstrate ‘consistency’.  The provider argues that the content of the report plainly supports a ‘Good’ rating.  Who is right?

First, it is important to recall that there are two separate legal frameworks relevant to inspections: the regulations and the KLOES.  The reason for that is a political decision when ratings were re-introduced that the regulations should represent the minimum standards and providers should not be rated highly just for meeting minimum expectations.

Under the relevant legislation, the criteria for ratings are not the regulations but rather ‘whatever indicators of quality the Commission devises’.

Those indicators are set out in the KLOEs and rating characteristics.

Consistency is referenced repeatedly in the rating characteristics.  For example, the general descriptor of Requires Improvement for Safe, includes ‘The service has an inconsistent approach that sometimes puts people’s safety, health or wellbeing at risk’.

How should CQC assesses consistency?  CQC has helpful guidance on this point in its internal document Inspection Guidance – Judgments and Ratings.  The guidance is intended to help assess whether a location is achieving sustained and continuous improvement following a breach.  It sets out the following prompts to assist in that task:

  • Does the provider understand what went wrong and why? What is the evidence for this and how is this corroborated?
  • What has the provider learnt from the breach evidence?
  • How has this learning been put into practice?
  • Has the breach been resolved, and is the legal requirement now met? How has quality improved?
  • What has the provider done to put things right? Have relevant systems and processes, equipment or training been introduced which reduce or eliminate the risk of the breach happening again?
  • Is there ongoing support available for staff/managers to help prevent further issues?
  • Can the provider demonstrate that the improvements they have made are sustainable? What is the evidence to support this? What plans, checks or audits are in place to check that the changes made will continue to be effective in the future?
  • What do people using the service say about the improvements? What impact have the improvements had on them?

Those prompts are not objectionable, and indeed are sensible, providing they are used to judge relevant prompts rather than being used as a substitute.

Significantly, there is no reference in them to a minimum period of time before sustained and continuous improvement can be achieved.  That is appropriate.  Sometimes CQC will reinspect sooner than others following an inadequate inspection.  The key issue is what CQC finds when it inspects.  If the answer to the prompts are favourable to the provider, it should be rated accordingly.  The previous breaches will be covered in the previous reports that will, of course, remain available to anyone who wishes to research the compliance history of the service.

In its annual report following the re-introduction of ratings, CQC wrote that the ratings would give the public a better and more transparent understanding of the quality of different services, while also encouraging providers to improve.   Those objectives are not fully realised if ratings are based on poor quality which has since been remedied.    People encountering a ‘requires improvement’ rating will categorise the service exactly as such: that it requires improvement.  CQC would, unfairly and inaccurately, be placing it into a category with other services that truly do need to improve.

Providers facing this issue should draw it to CQC’s attention in the factual accuracy process.  If that does not resolve the matter, it can be raised through the rating review process as it is clearly an example of CQC not following its own process.

Please contact me if you need further information on this or any other regulatory issues or inquests:

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

https://healthcarecounsel.co.uk/

 

 

 

 

Coincidentally, CQC also announced this week that duplicate material had been discovered in 78 inspection reports.  Two experts by experience, and one specialist advisor, had copied the same content into their reports presumably to save time.  In respect of 40 of the inspections, CQC republished the reports with the material removed.  However, CQC withdrew the publication of the remaining 38 reports where the material had been written by a specialist advisor.

Mr Noble, a lawyer himself, recognised that there will be exceptional cases where non-publication (or delayed publication) would be justified.

Is that right and if so, what would constitute ‘exceptional circumstances’?

To answer these questions, it is useful to ask how a court would approach the question of withdrawing inspection reports.

A court would take a different approach to delaying publication pending a final hearing into a challenge about the inspection, to making a final decision about an inspection report after trial.  CQC’s guidance should reflect that distinction.

 

Delayed publication

By a further coincidence, the High Court yesterday handed down judgment in a case concerning an application for an interim injunction to prevent publication of an Ofsted report[1].   ­­Ofsted inspected a state school and rated it ‘inadequate’.  The governing body profoundly disagreed with the report and brought judicial review proceedings challenging the decision.  It also applied for an injunction not to publish the report until the trial was heard.

The judge comprehensively reviewed the authorities in the area.  The duty to publish is a significant consideration.    There is a public interest in inspection reports being published to which courts attach great weight.  Accordingly, the court will only consider an interim injunction in extreme cases.    Phrases used in the case law include ‘exceptional circumstances’ (as used by Mr Noble), ‘most compelling reasons’ and ‘pressing grounds’.  Examples include:

  • The public body had engaged in a vendetta
  • Deliberate desire to inflict damage on the reputation of the person criticised
  • Fraud
  • Corruption
  • Report is manifestly untrue or riddled with error

This is not an exhaustive list and decision makers must keep an open mind about what might exceptional.  As the allegations will not yet have been investigated, the test to apply is whether there is a strong prima facie (I would used the phrase ‘strong appearance’ in lay guidance) that an exceptional factor applies.

Relevance of CQC Quality Assurance

In this week’s case, the court was impressed with Ofsted’s quality assurance systems in relation to inspection reports.  That strongly influenced its judgment that a strong arguable case had not been made out that the exceptional circumstances applied.  CQC’s quality assurance systems, in contrast, were also the subject of recommendations by Mr Noble.  This week’s revelation about the 70 flawed reports shows that CQC’s quality assurance system has not been working for some time.  Furthermore, as I’ve previously argued, CQC remains in breach of a High Court judgment requiring it to consider providers’ challenges to CQC’s responses to factual accuracy corrections[2].  Complying with that requirement, rather than CQC managers cursorily reviewing every draft inspection report, would be a useful first step.   Until CQC can show that its quality assurance systems have improved, CQC should recognise that it is easier for providers to cross the threshold of a strong prima facie case.

Publication pending investigation

If CQC is not satisfied that there is a strong appearance that exceptional circumstances apply, it can lawfully publish the report pending an investigation into any matters raised.  As a matter of fairness, I would argue that CQC should also publish that the report is subject to an investigation and invite the provider, if it wishes, to summarise its concerns.  CQC should, of course, still go on to investigate the concerns.

Investigation and Final Decision

The requirement for ‘exceptional circumstances’ applies to the question of whether a court should withhold publication pending trial.   When it comes to a final decision, the court will apply conventional public law grounds which include:

  1. Irrationality – making judgments are bizarre or perverse.
  2. Failing to take into account relevant considerations.
  3. Taking into account irrelevant considerations.
  4. Failing to follow CQC’s internal guidance without good reason.
  5. Bias.
  6. Bad faith.
  7. Unfairness – for example by not giving the provider sufficient opportunity to state its position, such as an inadequate response to factual corrections.

The court will give CQC’s view a great deal of deference because it will regard it as being an expert regulator with trained staff, tasked with undertaking an important function in protecting vulnerable people.

If the grounds are made out, the court will then go on decide whether, in its discretion, to grant a remedy, for example a mandatory order requiring CQC to withdraw the report.   Given the high hurdle that the claimant would have cleared to reach this stage (especially deference to CQC), courts are likely to provide some remedy.

CQC is better placed than a court to investigate breaches of public law and so should do so in a fair and open manner  When public law grounds are made out, CQC should pull the report unless the report is capable of remedy, for example where some offending material can be withdraw without affecting the balance of the report, as CQC appeared to have found in respect of the reports containing duplicated expert by experience material.

In summary:

  1. CQC should withdraw a report pending investigation when there is a strong appearance that exceptional circumstances apply.
  2. If CQC publishes a report that is subject of a complaint, it should publish that fact, and a summary of the provider’s complaint if the provider wishes.
  3. CQC should investigate all complaints about inspections.
  4. CQC should apply standard public law principles to its final decision regarding publication.
  5. If it is in breach of public law duties, CQC should withdraw the report unless the breach can be remedied in some other way.

Please get in touch if you need advice about your CQC report or help setting out your complaint to CQC.

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

[1] R (on the application of the Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWHC 69 (Admin)

[2] R (on the application of Ssp Health Ltd) v Care Quality Commission (2016)