Enforcement Action by CQC – a recent warning to care providers

On 29 December 2023, CQC published details of regulatory action it had taken to keep people safe at care homes run by Maple Heath UK Limited, following inspections it had carried out in October and November 2023 at four homes in Colchester.

All four care homes provide personal care to autistic people and people with learning disabilities, and all four had their ratings downgraded from ‘Good’ to either ‘Requires Improvement’ or ‘Inadequate’ as a result of the inspections. Two of the homes have now been placed into special measures and will be “kept under a close review by CQC”, whilst the others have been issued with warning notices, pursuant to CQC’s enforcement policy.

KLOE’s the provider fell short of in this case were Safe, Well-led and Effective. Amongst other things, CQC said the provider “lacked oversight of people’s care”, “hadn’t booked appropriate training for staff”, “hadn’t always learned lessons to keep people safe in future” and “hadn’t always reported incidents to the local authority’s safeguarding team or CQC”. For that reason, CQC have used their enforcement powers and issued warning notices to focus the provider’s attention on the areas needing “significant and immediate improvement”.

This action is a clear warning to providers that CQC will not delay in taking enforcement action where they consider that the care provided by a service harms people or puts people at risk of harm. Indeed, they have said in relation to this group of homes that they “won’t hesitate to take further action if needed”.

However, conclusions drawn by CQC following an inspection can sometimes be overly harsh and this can cause providers to feel that their ratings are being downgraded without sufficient justification. In this situation, there are steps that providers can take to try and prevent ratings being unfairly downgraded and avoid potential enforcement action, as follows:

1. Factual Accuracy – Once CQC have prepared their inspection report, they will send it to the provider to check the factual accuracy and completeness of the information they have used to reach their judgements and ratings. If a provider considers the report to be inaccurate, it generally has 10 working days to submit a factual accuracy challenge and any additional evidence in support, which must have been available to inspectors on the day of inspection.
2. Ratings Review – If a provider is unhappy with the outcome of the factual accuracy process, it can request a review of CQC’s ratings decisions, if it considers that the inspector did not follow the correct process for making ratings decisions. This sort of request usually needs to be submitted to CQC within 15 working days of publication of the inspection report.

Crucially, if a provider does not challenge a draft inspection report, CQC will presume that the contents of it are completely accurate. If CQC were to later take any enforcement action against the provider, the fact that the provider has not challenged inspection findings can make it more difficult for the provider to then dispute that enforcement action. If a provider is not completely satisfied with a draft report, it is therefore important to submit a factual accuracy challenge and to have those on record.

Providers will be aware of the wide range of civil and criminal enforcement powers CQC have, to include cancellation of a provider’s registration. Ultimately, action can be taken if CQC consider that fundamental standards, conditions of registration or any relevant legislation have been breached and a warning notice will be given to that effect. In that situation, providers should seek independent legal advice on the contents of that notice, together with the merits of challenging proposals to vary, suspend or cancel a registration, or to put the service in special measures, for example.

How can Ellis Jones help?

Our Healthcare Team recognise the pressures that care providers are under and the time restraints that most have to deal with the sorts of issues described above. To ease that pressure, we can provide you with concise, comprehensive and practical advice and work with you to protect your position, to include challenging reports, ratings and proposed enforcement action. If you have a matter you would like to discuss, please contact Henrietta Frew by email at Henrietta.Frew@ellisjones.co.uk.