Neil Grant was recently featured in the Caring UK September 2022, speaking about recent CQC updates relating to compliance issues. Please view the article below. Alternatively, to read the entire magazine, click here. Neil was featured on page 9.

The article

The legislation surrounding CQC’s activities is broad and general in nature. The Fundamental Standards are little more than headlines and CQC’s guidance for providers on complying with the regulations adds little additional detail. In contrast, the Welsh regulatory system is far more detailed and prescriptive; providers and responsible individuals in Wales know what they must do to achieve compliance.

CQC adopted the Ofsted rating scheme of Inadequate, Requires Improvement, Good and Outstanding some years ago.  However, there is no rating for being compliant. Instead, what we have is a confusing mélange of ratings.

The Requires Improvement ratings span providers who are judged non-compliant with at least one statutory requirement to those deemed compliant with all statutory requirements but where there are concerns about sustainability or consistency of care. There are then the Good ratings which are awarded when a service is more than just meeting statutory standards.  However, what this means is that the bar in terms of compliance is unclear.

Put simply, the way the CQC regulations and rating system have been defined means that inspection is something of a lottery with a significant subjective element incorporated into it, although CQC would no doubt call this professional judgement. What cannot be denied is that the preferences and attitudes of inspectors can have a major impact on what ratings a provider ends up with.

CQC is intending to introduce a new performance assessment system on a phased basis from January 2023 based on quality statements. In essence they are a slimmed down version of the current Key Lines of Enquiry which they will replace. The quality statements will sit under the current five key questions: safe, effective, caring, responsive and well-led.

Underpinning the quality statements will be six evidence categories, which will be the “required evidence” from providers.  They are (1) people’s experience, (2) evidence from staff and leaders, (3) evidence from partners, (4) processes, (5) observation and (6) outcomes. There will be a minimum frequency of evidence collection for each type of evidence applying to a service type, and the specific evidence required by CQC will vary according to the service type.

What is clear is CQC will be giving prominence to people’s feedback which includes families, friends and advocates, as well as the people using services. As the CQC states on its website, “If we receive feedback that people have poor experience of care, we will always identify it as a concern. We will review further and gather more evidence. This is even if other evidence sources have not indicated any issues.”  No right thinking person would disagree with this statement but it remains to be seen how such information will be weighed up and used by CQC as part of its new way of regulating providers and local systems.

CQC says it intends to score the evidence which applies to each of the quality statements in order to arrive at a percentage score for each key question. In a CQC video put out on 17 June 2022 on YouTube, the slides refer to the eight quality statements under the safe key question as an example. The slides note that the evidence for each quality statement can generate a maximum score of 4, meaning the maximum overall score under safe is 32 (8 x 4).  So, if a provider is awarded a score of 21 out of 32, the percentage score is 65.6%.

The percentage bands linked to ratings in the video were given as follows: 25-38% = Inadequate, 39%-62% = Requires Improvement; 63%-87% = Good and over 87% = Outstanding.  Therefore, a score of 63% would be deemed to be above the regulatory requirements and generate a Good rating whereas 62% would not, instead leading to a Requires Improvement rating. What it means is that a change to the score of one or two quality ratings can easily lead to a change in rating.

However, it is not clear how scores will be awarded for the required evidence under each quality statement.  Mark Sutton, CQC’s Chief Digital Officer, stated in a blog on 25 July 2022, that CQC will be using “…innovative data analysis techniques and professional judgement to support regular and consistent decision-making.”

It is also unclear how non-compliance will be judged under the new system and what its impact will be on the ratings awarded to adult social care providers.  Additionally, CQC has been silent about precisely how a provider will be able to respond to a quality assessment with which they disagree.  Urgent clarity is required from CQC on these matters to assist the provider community in understanding the new regulatory framework and preparing for it.

About the Author

Neil Grant

Partner and Health and Social Care Lawyer