ARC England’s members have told us: ‘CQC has become the social care sector’s biggest risk and a significant threat to the sustainability of providers”.
Background
The many and varied ways in which the Care Quality Commission (CQC), the regulator of social care in England, has failed are evidenced in Sir Mike Richards’ Review of the Single Assessment Framework and its Implementation and Dr Penny Dash’s interim report on the Review of the Operational Effectiveness of the Care Quality Commission.
Sir Mike Richards found that ‘CQC has been unable to fulfil its primary purpose “to ensure health and care services provide people with safe, effective, compassionate high-quality care and to encourage these services to improve”’. He also concedes that ‘The single assessment framework … is far too complex and, as currently constituted, does not allow for the huge differences in the size, complexity and range of functions of the services that CQC regulates. One size does not fit all.’
The Richards Review rightly concludes that ‘providers across health and social care report that the previous sense of partnership with CQC to develop effective approaches to assessment of quality has been lost.’
Previously, Dr. Dash highlighted a substantial loss of credibility in the health and care sectors regarding the CQC’s ability to identify its own poor performance and its efforts to improve quality of care. The oldest rating for a social care provider dated October 2015 is nearly nine years old.
Following publication of the Dash report, Wes Streeting, the Secretary of State for Social Care, described the CQC as “not fit for purpose” and Dr Dash’s findings are echoed by this Homecare Association report which finds serious deficiencies in homecare regulation.
These independent findings underscore the far-reaching consequences of the CQC’s ineffectiveness in driving up overall quality and improvement of care services in England.
Evidence
Through conversations and engagement with our members, who are all providers of support to people with a learning disability and autistic people, they have communicated to us the reality of how the systemic failure of the CQC is impacting their services:
- services have not been rated or are operating with severely outdated ratings
- too few inspections have taken place, jeopardising service quality, safety and public confidence
- registration delays have damaged the ability of providers to operate effectively
- inconsistent, flawed, irrational inspections that, when accompanied by complete relationship breakdown, have resulted in the managers who do so much to support people well and safely feeling they are being attacked and the concomitant stress and anxiety this causes
- the huge financial impact that all these failings have generated for providers.
More alarmingly, these findings about the regulator create an appalling environment for managers, undermining workforce development, hindering recruitment and retention and crushing creativity.
CQC’s role in the difficulties providers experience in obtaining a registration for new services have played a significant part in the continuing scandal of the 2000 people who remain in locked settings that are in many cases causing them harm. We are pleased that Sir Mike Richards considers work to reduce or eliminate registration backlogs is ‘urgently required’.
“Red tape is strangling care”
Our members often tell us that they feel that they are being strangled by red tape and that they spend more time proving that they are doing a decent job than they spend actually doing it.
They also tell us that the regulator is too focused on how things are done and pays scant attention to the results, outcomes and impact that providers are delivering. This creates a box-ticking culture which stifles learning, innovation and personalisation, stops the sector from designing and developing transformational ways of working and damages sector engagement.
Funding deficit ignored
In a commissioning climate where last year, 94% of local authorities were found to be paying fee rates to providers that did not allow them to pay the National Minimum Wage (ARC England Fee Rate Maps 2023), the idea that no consideration of this needs to be included in the assessment of either the service or the quality of the commissioning is simply irrational.
Our 2024 Fee Rate Maps provide the most up-to-date data on the funding situation for learning disability and autism services in England and Wales and show that the vast majority are a long way from receiving the 12% uplift widely accepted to be necessary for services to meet the financial requirements of the 2023 Budget. CQC’s failure to scrutinise this systemic barrier to delivering high quality, sustainable services is at best irresponsible and at worst negligent.
In summary, it seems clear that although there will undoubtedly be areas that are working well, the extent of the failure of the social care regulator impacts at every level. This has had a negative impact on the provision of services and means that for many, the CQC now represents a negative force mitigating against and limiting new and good provision. In any other circumstances, this would mean that in its current form the organisation would be beyond saving; if the CQC were a provider, it would be rated ‘inadequate’.
Identifying the opportunity
While we must call out these failings and draw the attention of ministers and civil servants to the impacts on the sector, here at ARC England we also feel compelled to play as constructive a part as we can in fixing the problems. For us, the first way we can do this is to identify the opportunity that the failure of the CQC is presenting to us.
We see an opportunity to reset the approach to the regulation of public services that in recent years has been underpinned by a ‘less is more’, hands-off and light-touch ideological approach to the regulation of markets. This approach has manifestly failed, just as the market model on which it is predicated is also failing.
A once-in-a-lifetime reset
The opportunity presented to us is for a once-in-a-lifetime reset of sector regulation. We need to be bold because people who depend on services now require this of us.
The obvious, but for many radical, first question we ask ourselves is: Do we actually need a standalone regulator?
Everyone we speak to at network meetings and events agrees that we need a system that ensures that the centre of gravity moves towards the best in class and one that in doing so addresses in a robust way services that are unsafe or of poor quality. However, it is by no means clear that this can be achieved by a standalone national regulator
Local independent regulation
One suggestion from an ARC England member is that regulation should sit with local authority commissioning because councils are already responsible for commissioning services that are safe, effective and good value for council taxpayers’ money.
This idea would certainly address the duplication of effort that arises when the CQC and local authority quality assurance teams repeatedly ask providers for the same data and information, to review the same policies and procedures and to consider the same quality measures and key performance indicators.
If the option to decentralise and to move to local quality assurance and regulation were to be considered seriously, our members say that the regulatory and oversight functions would need to operate entirely independently of councils and Integrated Care Boards (ICBs). Potentially, the ways in which statutory independent advocacy is commissioned might provide a useful template for this.
There would also need to be proper funding provided for this work; we know how strapped for cash councils are and given that even with the considerable sums providers pay for the privilege of being badly regulated and poorly supported, as above, the resource constraints the CQC is already working under cannot be simply transferred to a new model of local and decentralised regulation and quality assurance.
Potentially, another way to do this would be for an independent assessment and monitoring function to work alongside an entirely separate enforcement function in the way that Police investigations are passed to the CPS for prosecution decision-making and action.
The need for consistency
Devolving and decentralising the work of the regulator to councils would mean that careful attention would need to be paid to ensuring consistency and standardisation of approach. Our members are currently experiencing significant inconsistency in the way that inspectors are working, including how training and policies which have been developed by providers are reviewed; one inspector might assess them as outstanding whilst another sees them as simply good, or even requires improvement.
We think that, whichever model we settle on, inspectors should be required to work to an agreed performance baseline. Quality assurance, performance monitoring and safeguarding functions all sit with councils now, therefore there is a logic to this idea that we think should be given proper consideration because offers solutions to some of these challenges.
Another reason we think that a decentralised model could work is because it would generate opportunities for the fostering of high-quality, open and supportive relationships between service managers and inspectors that our members tell us we no longer have, and which are so important.
We also believe that this model is more likely to create the transparency necessary for the members of the public to connect with the evidence that services are operating safely, well and delivering value for money.
A devolved model could also be a great way to hear the voices of local experts by experience rather than relying on methods which purport to involve people but don’t. This model could provide genuine opportunities to influence inspection outcomes.
If we do retain a standalone regulator…
Our members believe that services that provide support to people who exhibit behaviour that challenges others should always be regulated. At the moment, this is only the case for accommodation-based services that provide regulated activities which means that very vulnerable people who have complex support needs can find themselves in services, for example day opportunities, over which there is no oversight. We must all know by now that this is a group of people who are especially susceptible to living their lives within severe restrictions and who are vulnerable to abuse. We also know that people’s abilities and support needs vary very significantly, which means the services that support them are working with a huge range of care and support complexity.
We would also therefore support the extension of regulation to include all services that support people with behaviour that challenges.
Single Assessment Framework must be abandoned
We disagree with Sir Mike Richards’ finding that ‘aspects of the single assessment framework could be retained – with some modifications’ (Section 2.6). Indeed, he writes that ‘CQC personnel working in each of the sectors do not feel that the single assessment framework works for their services’.
Our members are clear that the CQC’s new Single Assessment Framework (SAF) on which much of the recent change programme is based must be abandoned and this is not simply because it is a workable model that has been implemented badly. As well as the change programme that accompanied it, the SAF itself is flawed because it only looks at just a small number of elements and does so in an overly magnified manner that is focused on identifying issues. There is then no proportionality or context regarding a complex environment which faces daily operational challenges that inevitably mean that some things will be secondary.
As is evidenced by our members’ experiences, a good inspector will dig deeper, but a bad inspector will simply take the SAF findings at face value, failing to differentiate between a fairly minor issue and a more serious concern. If we can manage to identify serious problems during an MOT that mean that the vehicle must not be driven any further, as well as items that are noted on the advisory list, why can we not do this for service inspections? We are calling for a systematic approach to data interpretation. Guidelines for evaluating and interpreting inspection data and information that emphasise the difference between raw data and actionable insights should be published by the regulator.
Poor inspectors will also tend to place too much emphasis on historical events so that when something has been identified and an improvement made to address it, rather than maintaining a sense of perspective, some inspectors will continue to view the service through the lens of that one historical issue, leading them to the wrong overall conclusion about that service.
Learning from others
As has recently been announced in relation to Ofsted, our members support the idea of services that require improvement being partnered or buddied with services that are doing well and can help them. This moves us towards an improvement culture which we think goes to the heart of what regulation should be about. Currently, the approach is focused on punitive thinking and measures which, combined with the fact that there are no set guidelines beyond the regulations themselves for many aspects of service delivery, can lead inspectors who have differing views of elements such as care plans, staff training and reporting to interpret these things very differently from each other and from the leaders and managers working in services. Buddying would signify a change in culture towards preserving ‘deserving’ services and generally being supportive. Our members think that if CQC were not just to accept this simple idea but to endorse it, the effects could be profound, not least because it would begin the urgent work needed to rebalance the use of the stick versus the use of the carrot.
CQC could also learn from the Nursing and Midwifery Council’s proactive approach to training and development across the sector, as opposed to just reacting to issues. It would also play a part in rebalancing negative and positive reinforcement strategies.
Our members suggest more focus on developing a skills academy in partnership with universities and Skills for Care to push forward social care as a fantastic career rather than one where we only hear bad news (as in, for example, the CQC’s annual State of Care Report). Our members believe that a critical component in relation to skills development is the involvement of people with lived experience as part of the work that needs to be done to improve working relationships, sector knowledge and understanding.
Whole system inspections
ARC England members also recommend ‘whole systems’ inspection rather than scatter gun approaches. This should start with an integrated care system which would look at anchor institutions and then look at providers within that system. This would provide a fuller and more accurate assessment of the system than merely looking at services in isolation.
During the course of the review, Sir Mike Richards writes that ‘the issue of “one-word ratings” was raised on numerous occasions by providers. Further consideration should therefore be given to this issue. In particular, the level at which ratings makes sense to people using services should be considered.’ Whilst single word summaries may work for individual inspection domains, we don’t think these aggregate to create an accurate and effective overall assessment. We note that Ofsted has recently reached the same conclusion and we think this change also needs to happen in social care inspection ratings. Our members would support moving away from a single word assessment rating and towards a balanced scorecard approach.
A presumption of trust and the principle of fairness
ARC England members also believe that a presumption of trust and compliance should replace the atmosphere of mistrust that currently prevails because, whilst there will always be ways they can improve, most providers are doing a decent job. This change of approach would, for example, treat the information submitted in the provider information return as accurate and complete unless there is a reason to think it may not be. We are not suggesting here that everything and anything that the provider tells the regulator should always be treated as accurate and complete but that there should be a proportionate approach to analysing provider-submitted data which allows the inspector to form a view that the return is likely to be a full and fair representation of the service. Efficiency could be even further improved if the Provider Information Return (PIR) data collection model was undertaken via an exception reporting survey and if the data was shared with councils so their quality assurance processes did not duplicate the request to the provider for these data.
In principle, our members call for a change to how inspectors work. Firstly this should be fair and secondly they should use clear and consistent publicly available guidance which reflects the thorough knowledge and understanding that inspectors should be demonstrating of the many and varied settings and ways in which people with a learning disability are supported.
Specialist teams working with providers
The Richards report identifies that ‘ongoing relationships between inspection staff with relevant skills and experience and providers should be re-instated as soon as possible’. (Section 2.5).
Other areas in which specialist knowledge and understanding are crucial include the social model of disability, people having choice and control in their lives and being supported to live as independently as they are able; all of these make learning disability and autism services very different from healthcare settings and the services in which older people are supported and the current structure of the CQC does not take sufficient account of this.
We concur that the area of peer support, as mentioned in the Richards report, also merits further consideration.
When considering structural changes, our members would urge that consideration be given to resourcing levels. These new models might require even more resources than the uplifts needed to clear the backlog in relation to timely inspections and a responsive registration system.
Urgent need for consistency
Irrespective of whether or not it is decided to adopt a model in which inspectors become specialists, we are clear that they need to function much more consistently than they currently do. Inspectors need to understand and be competent to deploy the critical thinking skills that will allow them to hear past any noise that may be distracting them and to reach a solid understanding of the underlying quality of the care and support being provided; too often we are seeing inspectors who cannot get past a small number of largely unimportant issues to see the bigger picture in a service, for example, where staff might have raised unsubstantiated and demonstrably false allegations.
A collaborative approach
We are heartened to see the current deterioration in regulator-provider working relationships acknowledged in the Richards review. The structural changes we suggest would create the opportunities we need to allow the professional relationships between registered managers and inspectors to develop and grow. Our members are universally clear that we need to have these close, local working relationships, but we also know from bitter experience that when these go wrong, because of the power imbalance between the regulator and the provider, things can become very difficult indeed for services.
For us, this means that clear and accessible local mediation services must be in place with clear and balanced guidance in relation to resolving disagreements and relationship breakdowns. As well as being about the importance of the relationship, this is about the serious consequences for a provider if a requires improvement or inadequate rating is applied by a regulator that is operating within a culture that is focused on punishment rather than improvement. For evidence for this, we need look no further than the reasons the inspection approach at Ofsted is changing.
Fairness and reciprocity
As part of the principle of fairness, we want to see complaints handled in the same professional manner that providers are expected to manage them and this would mean that no complaint could remain unresolved for three years, as is the case for one of our members.
Another expression of the principle of fairness is the very poor engagement with providers and the manner in which this takes place. We want the regulator to not only say it is listening but to show it is listening; we think this means greater liaison and accountability between providers and the CQC through listening events and a return to regional meetings where providers can discuss challenges and opportunities.
Service level agreements
Yet another aspect of the principle of fairness is that there is no service level agreement (SLA) between the regulator and providers, despite the fact that they are, in essence, paying for the monitoring, inspection and enforcement service. We want to see an SLA that is framed to reflect the nature and spirit of the customer service relationship that is part of the cultural change that needs to happen.
Organisational Principles: A just culture
Perhaps the most powerful expression of fairness would be the implementation in the regulator of a just culture which focuses on learning from mistakes rather than assigning blame. Arguably, the single biggest area for improvement which represents the most powerful opportunity to transform the regulation of social care services is the way we address the issues surrounding the culture of the CQC, both internally and externally. A shift towards a just culture would move us towards this.
If we do have a standalone regulator, we believe that a set of organisational principles that underpin a just culture needs to be adopted. We would like to thank our member Home From Home Care, whose own organisational principles were the inspiration behind these.
Suggested organisational principles
A just culture that values:
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Transparency
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Collaborative working
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Quality assurance that enables choice and control
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Recognising purpose and belonging
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Establishing mutual expectations
Clive Parry, ARC England Director
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