Providers can sometimes be reluctant to dispute CQC’s inspection findings out of an imagined fear that it will lead to some form of retribution. Others may take the view there is little point in challenging CQC based on an opinion that it is unlikely to lead to changes to the inspection report given the inspector is ‘marking their own homework’. Finally, there is the time and cost that goes with submitting detailed factual accuracy comments and supporting evidence, particularly if the services of a lawyer or care consultant are utilised.

However, providers should highlight inaccuracies in draft inspection reports and challenge judgements which are unreasonable and disproportionate. Putting your case forward for the record is important and, in our experience at Gordons Partnership, it very often leads to changes to the content of reports and the ratings.

Legislation and customary practice  

Accountability is defined as being a core principle of good regulation in the Legislative and Regulatory Reform Act 2006 to which CQC is a signatory. Therefore, CQC should welcome being held to account whenever it has erred.

As far as inspections are concerned, accountability is hard wired into the CQC regulatory framework through the longstanding right of providers to receive an inspection report and comment on it before it is published. Inspection reports were first published in England back in 1998 and the right to make factual accuracy comments has been the norm ever since. If CQC were ever to limit this right of reply, it would be challengeable in the courts.

Expectations in terms of CQC inspection performance  

Providers largely cover the costs of CQC regulation through the payment of fees. The days when regulation was predominantly state funded have long gone.  In funding CQC, providers should expect CQC to carry out its functions effectively, efficiently, and economically as per the duty set out in Schedule 1, para 2(3) to the Health and Social Care Act 2008.

Equally, providers should expect CQC inspectors to uphold the highest standards of conduct.

 As CQC states in its Declaration of Interest and Resolution of Conflicts Policy (1 April 2015):

“Our Values: Integrity 
We demonstrate the highest ethical and moral standards, which instils trust in what we do. We are courageous, even when it is hard, so we don’t compromise on ensuring we do the right thing for people who use services, and for each other. We are clear about what we will do and how we will do it, and take responsibility for our actions. We are open, honest and transparent in all our work. We are objective and free from bias to ensure that our judgements are viewed as ethical, fair and driven by a passion for doing the right thing.” 

In the vast majority of cases, CQC inspectors uphold these values and demonstrate competence in what they do. However, there will always be a minority that fail to achieve these standards.

Redress

National regulators are not always good at admitting fault and apologising voluntarily. In addition, they do not, as a general rule, performance manage their inspectors at all well. Out of an institutional fear of upsetting inspectors, regulators can defend them even when there is evidence of misconduct and incompetence.

However, persistence can produce dividends. We acted for a provider who challenged an inspection report on the basis it was riddled with error. At first, CQC refused to back down. We involved a QC and served a letter before action on CQC. After what seemed like endless deliberation on CQC’s part, it eventually withdrew the inspection report. It took 12 months but ultimately the provider prevailed. We then asked CQC for compensation in relation to legal costs incurred by our client. After a further 12 months, NHS Resolution on behalf of CQC paid over £50,000 towards our client’s legal costs, equating to 75% of the total.

Not all cases will achieve such an outcome. It depends on the extent of the CQC failures, as well as the tenacity and resources of the provider.  But it shows what can be achieved in holding the regulator to account when the facts and evidence support the provider’s cause.

Solicitors Health and Social Care

Please feel free to contact us for an initial chat about any regulatory issues you may have with CQC. Neil Grant, who leads the Health and Social Care Team, is contactable on 07968 861242 or via neil@gordonsols.co.uk on a confidential, no obligation basis.

About the Author

Neil Grant
Partner and Health and Social Care Lawyer