Challenging a CQC inspection report or rating is important but it is often a step avoided by providers. Many providers often tell us that they are worried about challenging the CQC as they want to maintain a good relationship with their inspector and fear that a challenge will ‘rock the boat’, whilst other providers do not think a challenge will make a difference. We can tell you from experience that this is not the correct approach.
Whilst it is always good to maintain a positive relationship with your inspector, providers should not be anxious about challenging their inspection reports or ratings where they have solid grounds to do so and can back up any challenge with robust documentary evidence. Inspectors expect to be challenged and it is vital for ensuring quality monitoring of their practices and processes and to ensure that they are held to account where they do not accurately and fairly follow these; this is why these routes to challenge inspection reports and ratings exist. However, in order to be successful in any challenge, providers need to ensure that their challenges are reasonable and proportionate and are set out clearly to avoid any misunderstandings. Challenges cannot be rushed or lack an evidential basis.
So far this year (2023), we have assisted numerous providers in challenging the factual accuracy of their draft inspection reports and the ratings in their published inspection reports. In some cases, these challenges have led to significant changes in a report, including the removal of alleged breaches of regulations, as well as entire rating changes. Some of these examples are outlined below.
How can a provider challenge a CQC draft inspection report?
After a service is inspected, the provider will receive a draft inspection report setting out the findings from that inspection; the ratings in each inspected key question; and any breaches of regulations. A provider is given ten working days to challenge the factual accuracy of the draft report.
This is an opportunity for providers to challenge the accuracy and completeness of the evidence on which the inspector’s ratings and judgments are based. This includes typographical or numerical errors; the accuracy of the evidence relied on; and any additional or omitted information that should be considered.
This is an important process and should be utilised by any care provider who is not satisfied with the factual accuracy and completeness of the evidence on which the ratings within the report are based. That said, providers need to ensure that they have solid grounds for any challenge; each challenge to the report must be set out clearly and concisely; and be supported with robust documentary evidence.
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 is entirely accurate and accepted by the provider. Where the findings within the inspection report are later used as the basis for a decision by the CQC to pursue enforcement action, it is then much more difficult for providers to dispute the need for enforcement action on the basis of unchallenged inspection findings.
Recent case study – May 2023
We were recently instructed to act on behalf of a care home provider, which is registered to accommodate people with physical disability and/or complex healthcare needs. The CQC carried out a comprehensive inspection of their service and the draft inspection report set out a rating of ‘good’ in four of the key domains and ‘outstanding’ in the fifth domain, with an overall ‘good’ rating.
We were instructed to submit a factual accuracy challenge in response to the draft inspection report on behalf of the provider, which included a challenge of the ratings and a submission that the overall rating should be upgraded to ‘outstanding’. Within that challenge, we made detailed submissions as to why the inspector had incorrectly rated the service with reference to the inspector’s own findings and the CQC’s key lines of enquiry and ratings characteristics.
One of the CQC’s key ratings principles is that at least two of the five key questions would normally need to be rated as ‘outstanding’ and three key questions rated as ‘good’ before an aggregated rating of ‘outstanding’ can be awarded. We therefore needed to successfully challenge at least one of the ‘good’ ratings in order to change the overall rating of the service.
In May 2023, the CQC responded to our factual accuracy response, confirming that the rating in the ‘responsive’ key question had been changed from ‘good’ to ‘outstanding’ and as a result of their re-evaluation of the available evidence, and the change to this rating, the overall rating for the service had been changed to ‘outstanding’.
How do I challenge a CQC inspection report after it is published?
After an inspection report is published, a provider can request a review of the ratings within the final inspection report. The request must be submitted to the CQC using the correct online form within 15 working days of the publication of the report and not before publication.
However, the only ground for requesting a review is that the inspector has not followed the correct process for making ratings decisions and aggregating them. You cannot request a review solely on the basis that you disagree with the judgements made by CQC.
The CQC will consider whether the request for a review falls within the permitted grounds and if so, the review will be dealt with by CQC staff who are independent from the initial inspection report. It is, however, important to note that if the CQC do not uphold a request for review, you are unable to lodge a subsequent request to review the ratings of the same inspection report.
It should also be noted that a ratings review can result in an increase or decrease in the current ratings and the full request is limited to 500 words in total. Due to this word limit, ratings reviews are difficult to obtain and there is no guarantee that a request would result in a change in the ratings. The recent statistics published by the CQC put success rates at around 5.85% for adult social care providers; only 45 of 769 providers achieved an increase in ratings; re-inspection; or reconsideration of the report. Having said this, it is the only route a provider has to attempt to change any rating and put their concerns on record.
Recent case study – February 2023
We were recently instructed by a care home provider to request a review of their ratings. They had already submitted a detailed factual accuracy challenge which resulted in a number of changes to the report, however, the ratings remained the same. We made a request with reference to the CQC’s ratings guidance and the provider’s factual accuracy challenge within 15 days of publication.
After considering our request, the CQC accepted that their findings within the ‘safe’ and ‘well-led’ domains should be reviewed again against the ratings characteristics and the report was sent back to the inspection team to consider the impact of these changes on the ratings. In the meantime, the inspection report was withdrawn from publication.
These cases demonstrate the importance of challenging an inspection report and ratings both before and after publication and the impact such challenges can have on both the contents and ratings within a report.
Contact our specialist CQC lawyers
If you require specialist legal advice or assistance with challenging a CQC inspection report or rating, we have a dedicated team of specialist CQC solicitors who would be happy to help you. Call our specialist CQC solicitors now on 0161 696 6250 or contact us via our online enquiry form.
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