Following Pannone Corporate’s Freedom of Information Act request to the Care Quality Commission (CQC), regulatory associate partner, Bill Dunkerley, looks in more detail at what the statistics tell us and asks: what next for the CQC? Read more here:

What next for the CQC

Safeguarding concerns in the UK care sector are falling from the highs seen during the coronavirus pandemic, new figures show.

From January to May this year, more than 9,000 safeguarding alerts and concerns have been raised in the sector. This compares to a total of 21,886 in 2021, with figures hitting 23,116 last year.

The figures obtained through a Freedom of Information (FOI) request to the Care Quality Commission (CQC) – conducted by law firm Pannone Corporate – also show that inspections in the UK’s care sector are on track to fall, continuing the downward trend seen since 2019.

Announced inspections fell from a peak figure of 6,684 in 2019 to just 1,458 in January to May 2023. Unannounced inspection also appear to be decreasing. According to the FOI figures, 2,223 unannounced inspections were carried out in the first five months of 2023. In 2016, this reached a high of 19,586.

The significant reduction has been attributed not only to the pandemic, with the CQC temporarily ceasing all physical inspections from 16 March 2020, but also to the evolving regulatory model being adopted by the Commission.

Bill Dunkerley, regulatory lawyer and associate partner at law firm, Pannone Corporate, commented: “The seismic impact of the pandemic on the care sector is widely documented and this can be seen in the figures released by the CQC around safeguarding concerns and inspections.

“What’s also clear is that the CQC is not static in its approach and the standards which it expects providers to achieve continue to evolve. This is evident in the introduction ‘Single Assessment Framework’, as well as the initial evidence-gathering phase being simplified into six new categories, to streamline the information collated. The feedback received will allow the CQC to make individual assessments more bespoke to individual providers, for example in respect of their delivery model or population group.”

The FOI research also shows that since March 2021, the CQC has received nearly 37,000 whistleblowing enquiries, with more than 6,000 being received in the first five months of 2023. The number of complaints raised during the same 26-month period topped 135,000. However, with only 25,017 made between January to May 2023, it’s unlikely the figure will exceed the 62,591 seen in total in 2022.

Dunkerley said: “The trend across the board is a general decline in headline figures, with complaints, whistleblowing, and safeguarding concerns all likely to be lower in 2023 based on the current statistics.

“As the CQC continues to roll out its new regulatory model, and Inspectors find their feet with the new data-driven approach, it will be interesting to see how the figures develop over the coming months and years. It may be the case that the CQC’s new approach results in a permanent reduction to the frequency of inspections, but equally may also result in an increase in the use of its more dynamic powers, such as notices, which can have an immediate and profound impact on a provider’s continuing operations.”

Dunkerley added: “Whilst the CQC has modified the form of its regulatory function, and amended its assessment criteria over the years, its fundamental roles have remained consistent: ensuring the safety and quality of care of service users; and maintenance of appropriate standards of behaviour by providers.

“These are the same core objectives held by providers, and so long as they continue to put these demonstrable tenets at the centre of their business, then they are likely to be well-placed to respond to any future changes in the CQC’s operations and regulatory model.”

Inspections in the UK’s care sector have fallen dramatically in the last seven years, as the Care Quality Commission (CQC) continues to evolve its regulatory model, accelerated by the coronavirus pandemic.

From 2015 to this year, the number of inspections undertaken by the CQC has dropped by around 97 per cent – from a peak of almost 23,000 to just over 8,000 to date in 2022. Understandably, there was a significant reduction across all types of inspections during 2020 as a result of the pandemic, with the CQC temporarily ceasing all physical inspections from 16 March.

The figures obtained through a Freedom of Information (FOI) request to the CQC – conducted by Pannone Corporate – also shows that announced inspections fell from a peak figure 6,684 in 2019 to 3,593, with unannounced inspections also decreasing, from 19,586 in 2016 to 4,663 to date in 2022.

Bill Dunkerley, regulatory lawyer and associate partner at law firm, Pannone Corporate, commented: “It’s very clear that the coronavirus pandemic had a profound effect on the CQC’s ability to carry out inspections within the care sector, despite a number of inspections taking place by means of its Emergency Support Framework.

“However, what is clear from the figures is that inspections have been progressively declining over a number of years, from their peak in 2016. The reason for this decline is unclear, given that inspections are the primary way the CQC monitors compliance. Anecdotally, there may have been an initial backlog from when the new legislation came into force, with the CQC reviewing every application for re-registration.

“As the Commission continues to capture information and rate providers in accordance with the new standards, there is less need for unannounced inspections, with Inspectors proceeding instead by way of ongoing monitoring and announced follow-up visits in response to specific concerns received. This reflects the CQC’s revised – and evolving – regulatory model, which emphasises targeted inspections in response to specific concerns received. Moving forward, this risk-based approach is likely to continue as part of the Commission’s move towards a ‘single inspection framework’ and programme of rolling multi-point assessments.”

The research also shows that between 11 November 2021 and 15 March 2022, when vaccination was a condition of deployment, the CQC received 13,339 concern, safeguarding and whistle-blowing enquiries. By contrast, the total number of concern enquiries received by the CQC in 2019 as a whole was just over 43,000.

Dunkerley said: “During a short period of time, the number of concern enquiries remained at a high level. However, the annual figures are broadly consistent over a number of years which indicates perhaps that the presence of COVID-19 had little impact on the number of complaints generated.

“What is evident from the CQC figures is that in terms of enforcement, notices remain by far the single most commonly used regulatory action by the Commission, accounting for more than half of its enforcement activity.”

The FOI request shows that more than 69,000 requirement notices have been issued since 2015 (3,099 in 2022 to date), with over 7,000 warning notices during the same period (152 during 2022 to date).

Dunkerley added: “The changing landscape and evolving position of the CQC cannot detract from the fact that the Commission is still eager to impose conditions, cancel registrations and vary conditions of care providers. With the number of legal reviews standing at 132, it’s imperative that service providers review their procedures, systems and address risk areas in anticipation of inspection or intervention. The most effective management, however, is to avoid the initial set of circumstances that bring about regulatory intervention or investigation.”

As part of the launch of our annual Care Report, barrister, Jonathan Landau, looks in more detail at the CQC’s new strategy and the likely consequences. 

The care sector is an integral part of the UK’s societal landscape – both in economic terms and the number of vulnerable people it services. With an ageing population – with estimates suggesting a 36% growth in the number of people aged over 85 by 2025 – it’s clear that the sector will only grow in prominence over the coming years. 

The regulatory structure that sits around the sector has been governed by the Care Quality Commission (CQC) since 2009 when the external body was created to regulate and monitor health and social care services in England, taking over the roles and responsibilities of the Healthcare Commission, Commission for Social Care Inspection and Mental Health Act Commission. In bringing together these three predecessor organisations it was (and remains) the CQC’s stated aim to ensure that, “health and social care services provide people with safe, effective, compassionate and high-quality care.”

Initially the CQC inspected and monitored registered care providers in accordance with 16 ‘essential standards’ of quality and safety. However in the years that followed its creation there was, both within the CQC and the wider industry, a perceived lack of understanding as to how the essential standards were applied and interpreted in practice, prompting new ‘fundamental standards of care’ in 2015. To assist in enforcing the required standards, the CQC was given new powers, transforming it from an inspection and monitoring organisation into a regulator with teeth, including not only civil enforcement powers, but also the ability to prosecute those who had failed to meet those required standards.

Roll on six years and the role of the CQC remains a great source of debate. A global pandemic has made a seismic change to the way in which the CQC has pursued its objectives, and earlier this year it introduced a new strategy ‘for the changing world of health and social care’. The aim of the strategy, published in May 2021, is to strengthen the CQC’s commitment to deliver its purpose.

The CQC claims that its aims and role as a regulator won’t change – but how it works will be different. The strategy is based on four themes:

People and communities

Regulation that’s driven by people’s needs and experiences, focusing on

what’s important to people and communities when they access, use and move between services.

Smarter regulation

Smarter, more dynamic and flexible regulation that provides up-to-date and high-quality information and ratings, easier ways of working with the CQC and a more proportionate response.

Safety through learning

Regulating for stronger safety cultures across health and care, prioritising

learning and improvement and collaborating to value everyone’s perspectives.

Accelerating improvement

Enabling health and care services and local systems to access support to help improve the quality of care where it’s needed most.

The ‘smarter regulation’ theme is likely to have the biggest impact on providers, in terms of how they are inspected and rated. There will be a move away from relying chiefly on comprehensive on-site inspections. Instead, the CQC will develop continuous insight and monitoring methodologies. It anticipates that this will enable inspectors to spend more time speaking with people when on site rather than looking at paperwork.

The CQC also plans to develop innovative ways of analysing data and using AI to make decisions. Ratings will be more dynamic and won’t require an inspection for a change in rating.

All of this presents both risks and opportunities. In terms of risks, the validity of the CQC’s judgements will only be as robust as the systems it uses and the data it obtains. Providers, their advisors, and representative bodies will need to scrutinise the methodologies as they develop and quickly raise concerns. It’s likely that AI, for example, will pose some difficulties, with the potential for some very uncomfortable – even discriminatory – decisions for the CQC. Providers will also need to advocate for a fair system of challenging any decisions, as it seems unlikely that the factual accuracy correction procedure will not be available for such a dynamic regulatory scheme. That is particularly important if the CQC is obtaining information from sources it cannot itself verify and if it is making decisions on an AI (read automated) basis.

In terms of opportunities, providers that develop good relationships with stakeholders, and who invest time in understanding the CQC’s methodologies, will be well-placed to achieve good ratings and may benefit from lighter touch regulation. The more developed the CQC’s methodologies are, the easier it will be for providers to ensure that they can provide the evidence to satisfy the independent regulator.  

Currently, the CQC is targeting services with which it has concerns. In many cases, it does not have concerns about homes with lower ratings because of the improvements they have made. That leaves them stuck on lower ratings, because the CQC is not re-inspecting them. The ability for ratings to improve quickly is therefore very welcome.  

The themes of the new strategy are laudable, but it is inevitable that there will be unintended consequences and teething problems as the methodologies develop. Case associations and providers’ trusted advisors will be well-placed to keep them informed as the detail emerges.

Jonathan Landau is a barrister at 5 Essex Court. He has particular expertise in inquests and healthcare regulation. Joanthan is regularly instructed in relation to high profile Article 2 and jury inquests, often in the context of media coverage or regulatory investigations. He advises in respect of a broad range of healthcare regulatory matters including all levels of CQC and Ofsted enforcement, safeguarding investigations, commissioning disputes, contract monitoring, and mental capacity.

Whistleblowing in the UK’s care sector rose to its highest recorded level in 2020, driven by health and safety concerns brought on by the coronavirus pandemic.

The number of whistleblowing complaints made to the Care Quality Commission (CQC) has increased year-on-year since 2015, with a 43% rise between 2019 and 2020 – a total of 14,508 enquiries were received last year.

The figures obtained through a Freedom of Information (FOI) request to the CQC – conducted as part of an annual Care Report by Pannone Corporate – also show that ‘concern’ enquiries increased by 39% between 2015 and 2020. However, the number of safeguarding complaints fell to its lowest level last year to 25,847, driven in large part due to a reclassification of abuse notifications in March 2018 and an increase in providers notifying their local authorities in the first instance rather than the CQC.

Bill Dunkerley, regulatory lawyer and director at law firm, Pannone Corporate, commented: “The global pandemic has had a profound effect on the care sector, touching every facet of the industry – whether that’s financially, operationally, or from a corporate governance perspective. Prior to 2020, the word ‘pandemic’ was unlikely to be considered as anything more than a theoretical risk. However, events since March last year, and the imposition of the first national lockdown in the UK, have demonstrated that providers must be prepared for all eventualities and risks.”

He continued: “In the context of the last 18 months, it comes as little surprise that the number of whistleblowing enquiries rose to its highest recorded level in 2020. In general terms, the majority of complaints in the UK relate to health and safety matters. It’s therefore reasonable to assume that the increase in complaints from 2019 to 2020 were related to the coronavirus, with safety concerns around COVID-19 extremely likely to have played a role in these figures.”

The Care Report 2021 shows that regulatory interventions rose by 109% between 2016 and 2019, understandably falling in 2020 due to a seismic change in how the CQC conducted itself as a result of COVID-19. The rise in interventions mirrors the number of enforcement actions carried out by the CQC, which revealed an 87% increase since 2014/15 in its latest annual report.

Dunkerley said: “In light of the increasing use of enforcement action by the CQC, as well as the apparent realisation of the intention to prosecute more cases, it’s imperative that service providers review their procedures, systems and address risk areas in anticipation of inspection or intervention. This includes assessing areas of their operation requiring immediate improvement; undertaking pro-active audits of risk areas and implementing remedial or control measures where appropriate; and responding to near misses and learning from them to prevent a recurrence.”

He added: “The last 12 months have had a particular impact on the CQC, which has had to respond to the novel challenges presented, as well as clarify its own role in regulating providers in light of recent criticisms. When you consider that people are also more alive to potential issues of concern, as well as becoming more aware of the CQC’s role as regulator and its power to take enforcement action in response to issues of concern, then we are likely to see considerable change in the care sector over the course of the next 12 months as providers and the CQC adapt.”

To read the report in full, click here