HSC Professional ask: How safe are your ratings?
Much of the output of a public authority arises from the exercise of a “discretion” provided in primary legislation. Thus the law on the, er, “award” of performance ratings to care homes and domiciliary care services is that section 46 HSCA2008 gives CQC a broad ‘discretion’ as to how it should be done. That said, there are controls and balances, albeit at some distance not to mention some cost.
Perhaps the most famous speech in our legal history was that of Lord Greene in 1947 on the exercise of discretion, ruling on whether Wednesbury Corporation had acted reasonably in banning children from cinemas on Sundays:
“A person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”.
Take two hypothetical examples, of care services with an exemplary record – but with one isolated exception. In one case a single error of drug administration has resulted in emergency hospital admission of a service user. In the other, the inspecting officer finds that the ratings are not displayed in the care home, because the sheet had fallen off the board and been discarded in error. The ratings were 4 Good and 1 Outstanding (Caring), so the manager had no reason to want to hide them from view. There is thus a breach of regulations in each case. In both cases the ratings will be downgraded. In the former the outcome will obviously depend on the causes and circumstances of the mistake. In the latter case, the Well-led rating will be held down at Requires improvement, whatever the other findings at inspection. But there’s more. The overall rating is also downgraded to Requires improvement, by applying a “blanket policy” where there is any breach. From “How CQC monitors, inspects and regulates adult social care services”, January 2019, at page 18:
“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 precludes the exercise of discretion as between the above examples.
The same is true of the policy on the Well-led rating if your PIR is not submitted ‘on time’. CQC relies on the 28-days rule in regulation 17 to exclude any discretion here. But what if three days before the due date for a PIR the manager took a call that informed her that her three children had been killed in an RTA? CQC’s blanket policy means that the service will be labelled as providing “sub-standard care” until the next inspection in about two years’ time.
And how about the blanket refusal to upgrade ratings at follow-up inspections on the spurious and legally indefensible rule that they need further evidence of “sustainability”? In the extract here all of seven previous breaches were resolved at follow up but the overall rating was held down for the purposes of keeping the provider in special measures.
The blanket policies of the Care Quality Commission run a coach and horses through their statutory duty to act proportionately, making response to draft reports more necessary and more challenging. Section 4(1)(e) HSCA2008 provides:
“In performing its functions the Commission must have regard to … the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed”
CQC “functions” include award of ratings (under regulations from 2016).
So what about the new restrictions on representations in response to draft inspection reports? As I said last month they are designed to put a little more distance between the provider and any judicial remedy for errors in the exercise of discretion. Lord Greene must surely be turning in his grave just at the moment.
HSC Professional (Consultancy) provides consultancy at competitive rates, with fixed fees for ‘standard’ work including response to draft inspection reports and proposed enforcement, and compliance assessments and provider information returns for care homes and domiciliary care services.
For a free preliminary consultation on your consultancy needs please call Richard Fairburn on 07866 605545. For the service brochure please make yourself at home at www.hsc-prof.com or follow the links from the Facebook page at
… and do check out the forthcoming series of seminars on inspections and KLOEs!