Jenny Wilde, Solicitor at Ridouts, explains what health and social care providers can do to ensure inspection reports reflect their service.
Whilst going through a regulatory inspection can be a stressful and high pressured situation, coping with the resultant draft report can be equally challenging. Inspection reports are essentially the most compelling piece of marketing for any health or social care service and so the contents of any inspection report ought to accurately reflect what the regulator witnessed on the day of their visit.
However, in our experience, providers are often left shocked and disappointed when the draft is received, unsure of how such a negative report could have arisen from what appeared to be a positive day of inspection. We always encourage providers to reflect carefully on these drafts and feel empowered to challenge them where there are clear errors or something simply does not feel fair or reasonable. Ridouts has vast experience in challenging reports, some containing minor errors and others presenting highly damaging and misleading portrayals of a service.
Both the CQC and Ofsted are legally required to prepare a report on the matters inspected during a review and send a copy of the report to the provider and manager ‘without delay’. Providers should be clear that not only will an inspection be made up of findings unearthed during a physical visit but also from information gathered from other stakeholders (eg family members, commissioners, whistle-blowers). This information can be gathered by the regulator remotely.
CQC Guidance states that providers have 10 working days (from the date a draft is emailed to them) to challenge any factual inaccuracies in the draft inspection report. Ofsted allows its registered providers just 5 working days.
It is important that challenges to reports are made where the content is inaccurate or misleading. Inspections are often publically available documents and as mentioned above, will be carefully considered by prospective service users and their families.
Negative or misleading inspection reports can damage reputation and goodwill; local authority and privately funded residents may withdraw or not make further placements and poor inspection reports can lead to further enforcement action from the regulator (as the report will be used to build a picture of non-compliance).
If reports are not challenged it will be taken that the provider accepts the content. Although regulators do not publish provider comments on its website, providers can make their response available at the location to service users and families (with any sensitive information redacted) and send them to commissioners.
It is vital that providers understand the scope of the factual accuracy process and what can be challenged.
Challenges to CQC reports
It is important to go through the report line by line and consider each phrase and comment. When working on factual accuracy comments for providers Ridouts operate forensically and go through every comment, nuance and fact with a critical eye.
Legal representation enables providers to take the emotion out of any submissions and reflect impartially on any argument put forward. It also allows legal arguments about natural justice and reflections on the regulations to be considered.
Although this may seem laborious – it is important that any valid objection you have is lodged because should matters progress further in the form of enforcement it will be much more difficult to challenge them at a later date and the validity of that challenge will be questioned when a contemporary challenge was not made. Only full robust comments backed up with evidence will have an impact on the draft report where the report is incorrect.
CQC’s most recent FAC guidance provides that you can challenge any or all of the following:
Typographical or numerical errors or, for example, incorrect job titles.
Information that has contributed to a judgement, but which you believe is factually inaccurate. You will need to provide supporting evidence
Additional information, or information that was omitted, which you think the CQC should consider. For example, you may have further examples of exemplary practice that demonstrate real benefits for people using your service, which may support a rating of outstanding rather than good.
Ridouts would also recommend providers challenging imprecise wording eg the CQC may say ‘some care plans were not up to date’. CQC should clearly state how many care plans and what proportion of all care plans this relates to as 2 of 4 care plans not being up to date is very different to 2 of 50 not being up to date. Lack of precision can create an unfair and inaccurate picture.
Negative language should also be contested if it paints the service in a light that is not favourable without reference to any robust evidence.
In practice, this means that providers can inform the CQC if they have any aspects of their facts, or judgments, wrong. Those judgments include the proposed ratings and any alleged regulatory breaches. We have regularly assisted providers to challenge ratings and/or alleged breaches of regulations which have been applied based on inaccurate facts or in disproportionate circumstances.
Any challenge must be supported with documentary evidence highlighted to the specific point it aims to support. Providers should clearly link this evidence to the argument that is made in the factual accuracy table. Internal guidance written for CQC inspectors states that if a provider disputes a point made without reference to supporting information, the inspector should seek such information from the provider. If the evidence is not provided the point may not be considered. If that evidence is provided and accepted then the inspector should consider if it affects or changes the judgments or ratings.
When thinking about challenging judgments and ratings, providers must bear in mind CQC’s rating limiters. These are a small number of circumstances set out in the Provider Handbook (How CQC Monitors, Inspects and Regulates Adult Social Care Services) that CQC identify as sufficiently serious to limit the rating of the well-led domain to Requires Improvement.
These include failure to submit statutory notifications, not meeting conditions of registration, not having a registered manager in place or not returning a PIR where requested by CQC. In addition, elsewhere in that same Provider Handbook, CQC state that: “In line with our enforcement policy, the overall rating for a service cannot be better than requires improvement if there is a breach of regulations.” This can effectively a limit the overall rating of a service to Requires Improvement if a breach is identified even if, for example, a service has four Good ratings and one Requires Improvement rating.
Providers should be aware that these rating limiters are not statutory and they are not absolute. They are simply aspects of CQC’s guidance and the regulator has discretion about whether or not to apply them. There can often be a good reason why, for example, notifications have not been submitted and why a rating limiter should not be applied. Providers can make submissions about these circumstances through the factual accuracy process and CQC, as a public body, is required to exercise its discretion in a reasonable manner, in considering whether it is appropriate for those limiters to be applied.
Challenges to Ofsted reports
As with challenges to CQC reports, it is important to go through the report line by line and consider each comment.
Ofsted’s factual accuracy process has always been notoriously challenging for providers of children’s services. Its factual accuracy process was historically limited in its remit, namely because it was an opportunity to challenge the accuracy and completeness of the evidence upon which the resultant outcomes are based (for example, typographical and numerical errors), but not the judgments made by the regulator. For this reason, many providers were forced to make a complaint about the inspection in conjunction with submitting any factual accuracy comments. In September 2020, Ofsted implemented the following changes in an attempt to better the factual accuracy process. It set out to:
Ensure greater consistency in post-inspection arrangements across inspection remits;
Standardise at 5 working days the period allowed for providers to review their draft report and raise any issues of factual accuracy and about the inspection process;
Consider and respond to formal complaints from inspected providers before publication of their inspection report, if these complaints are submitted within 5 working days of Ofsted issuing the final report; and
Retain current arrangements for internal reviews into complaints handling, including the scrutiny panel.
In addition, Ofsted now allow providers to comment on ‘the inspection process’. This means that since September 2020 providers can not only comment on the factual accuracy of the report, but will also have the opportunity to raise any concerns that they may have about the judgements made. This will ensure that any concerns about the judgements are raised at the first opportunity and may prevent the need to pursue a complaint. This is a departure from the historical position.
Another significant change is that if a complaint is submitted within 5 working days of Ofsted ‘issuing the final report’, Ofsted will consider and respond to such complaints before the report is published. Whilst this means that providers will have less time to lodge a formal complaint following the factual accuracy process, it will ensure that providers’ concerns are considered before a report is finalised, which prevents any reputational damage caused during this period. This process differs greatly from that of the CQC, which very rarely refrains from publication in the context of a complaint about an inspection.
Empowerment for providers
Providers often approach Ridouts dissatisfied with a draft inspection report. They express concern that the contents will worry existing staff and service users, deter families from selecting the service for their loved one or even mean that commissioners will refrain from placing with a poorly rated service (in comparison to other local competitors – as is increasingly becoming internal policy at many local authorities).
Despite these concerns, providers can feel worried that to challenge a regulatory report will effectively put a ‘black mark’ against their name and mean that all future contact with the inspection team will be negative and adversarial. We find this not to be the case and setting out a position is vital in ensuring that your service is properly represented. Providers that challenge often find that the regulator is extra careful the next time they come to review the service – knowing that they are inspecting a provider that carefully considers and challenges drafts.
Draft reports should be carefully considered and where necessary, legal advice sought on the best way to challenge accuracy. Providers must do all they can to protect the way that their service is presented to the world by their regulators in order to ensure fair evaluation by commissioners and would be service users alike.