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A Care Quality Commission rating can make or break a care home, so it is vital care homes feel they are able to protect their reputations and can challenge inspection report findings if there is justification.
It is important that care providers act quickly, according to Laura Hannah, an associate solicitor with the regulatory team at Stephensons Solicitors LLP.
Any factual inaccuracies, or other complaints, need to be flagged up as early as possible, and the window for contestation at each stage is usually about 10 days.
Providers ‘should always make clear, robust challenges against draft reports’
She says: "It is sometimes the case that providers do not submit factual accuracy comments even where they are not satisfied with the accuracy or completeness of a draft report. This may be because they do not think it will make a difference or in some cases, they do not wish to aggravate matters with their inspector."
However Ms Hannah says this is "entirely the wrong course of action. Providers should always make clear, robust challenges against draft reports, whatever the circumstances may be."
The Care Quality Commission (CQC) offers care providers the opportunity to highlight any factual inaccuracies before the final report is published. There are only 10 days to produce any challenges, so it’s vital that the draft report is digested as quickly as possible.
If a draft report is left completely unchallenged the eventual consequences could be dire, and the solicitor warns: “If no challenge is made to a draft report and it is subsequently published, there is a presumption that the contents of the published report are entirely accurate.”
The draft inspection stage is a provider’s only opportunity to challenge the factual content of a CQC report, and anything recorded at this stage could help support care providers if they needed to request a ratings review, or challenge a ‘warning notice’ later on.
What can be done if the CQC serves a Warning Notice’?
The CQC issues a Warning Notice if inspectors believe the quality of care falls below what is legally required. There is no right of appeal against a Warning Notice, but you may make representations to CQC about it.
If the CQC does serves a Warning Notice, the care provider gets the chance to make a representation against it via a form on the CQC website. This must be done within 10 working days of it being issued and must be done in writing.
A warning notice can be challenged on the following grounds:
• it contains an error
• it is based on inaccurate ‘facts’
• it would be unfair to publish it for some other reason
• it should not have been issued for some other reason
The CQC will usually attempt to respond to care providers within five working days with a written decision.
Requesting a ratings review
Care providers can ask for a review of ratings after an inspection report has been published. But again this needs to be as soon as possible as you have to request a review within five days of the CQC report being published.
The review process is the final CQC process for challenging a rating.
Ms Hannah says: "The full request must then be submitted to the CQC within 15 working days of publication of the report. It cannot be made before publication. Both the intention and full request must be submitted via the CQC’s online web forms."
It's important though for care providers to be aware that the CQC recently limited a provider’s ability to challenge ratings by capping any full challenge to just 500 words.
"This means that the factual accuracy process is even more important as the CQC will no doubt have to reconsider any factual accuracy challenge made when considering a ratings review," she says.
Success in overturning a CQC rating
Ms Hannah recently succeeded in overturning a CQC rating through a ratings review request. She represented a home care provider in the West Midlands, which received a draft inspection report rating the service overall as ‘Requires Improvement’.”
After an unsuccessful attempt to challenge factual accuracy and subsequent rating scores, the care provider instructed the solicitors to make a ratings review request on their behalf. Stephensons challenged the rating of ‘Requires Improvement’ for the safe and well-led domains, on the grounds the CQC had failed to follow their own published processes.
Ms Hannah says: “It was clear in this case that the inspector did not have a sufficient understanding of how a home care service operates and this had led them to make inaccurate conclusions upon which they based their ratings decisions in these domains.
“All other ratings within the report were ‘Good’. After considering our request, the CQC decided to withdraw the inspection report from publication and carry out a fresh inspection by a different inspector. This inspection resulted in the service being rated as ‘Good’ in all areas.”
Ms Hannah warns that a review of ratings can result in an increase in ratings, but also a decrease, so it is important to think very carefully before requesting a ratings review.
Final recourse: Judicial review and formal complaints
As a ratings review is the final process for challenging an inspection report, the last recourse to challenging the CQC is to submit a complaint or apply for a judicial review. Ms Hannah says: “Any complaint must firstly be made in writing to the relevant person, such as the inspector, or the CQC’s National Customer Service Centre.
“Complaints against ratings or the contents of inspection reports will only be considered via the factual accuracy and ratings review procedures.”
The only complaints that can be considered at this point are:
• administrative mistakes
• unprofessional behaviour
• failure to follow the proper procedures
• not meeting required standards
Judicial review is really a last resort. It can be a complicated and costly way of making any kind of challenge.
Ms Hannah says: “It’s a form of court proceedings in which a judge reviews the legality of a decision made by a public body, such as the CQC.
“This process can only be followed where all other options have been exhausted, for instance, after the factual accuracy and ratings review processes. A provider may bring judicial review proceedings on any one or more of three grounds including: illegality; fairness; and irrationality and proportionality.”
More information on challenging CQC ratings can be found at http://www.cqc.org.uk.