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The right to challenge
Know your ground when contesting CQC inspection
reports and ratings, says Samantha Cox
CQC now has the power to rate independent standalone
substance misuse services and is currently rolling out its first wave of
comprehensive inspections to establish a ratings baseline for future inspections.
This is the first time such services are being rated by CQC. Adverse ratings can
have a negative impact on the financial and operational viability of provider
services and it is therefore vital that CQC get it right.
Providers are afforded the opportunity to challenge the content and ratings of an
inspection report through official routes set out in CQC guidance. This includes the
factual accuracy and rating review processes, which are set out in more detail below.
Other potential routes of challenge include complaints to CQC and judicial review.
FACTUAL ACCURACY CHALLENGES
It is important for providers to challenge factual inaccuracies and misleading
comments presented in draft inspection reports, to ensure an accurate picture is
communicated with the public. If errors are not challenged, these will be deemed
to be correct and any perceived areas of non-compliance with the regulations can
lead to the requirement for the production of action plans or, in more serious
cases, use of CQC enforcement action. Providers should therefore ensure they read
their draft report thoroughly and, where relevant, ensure challenges are raised
with CQC through its formal factual accuracy comments (FAC) process.
Once a draft inspection report has been received, providers have ten working
days to submit any FACs to CQC. CQC provides a FAC table for providers to
populate with relevant comments.
Providers should be aware that as well as challenging the accuracy of
statements, they can also challenge judgements (including alleged regulatory
breaches) and ratings through the FAC process, particularly if factual errors have
been relied on to inform judgements. Where possible, providers should be
supplying evidence to support their assertions.
FACs will be considered before the report is finalised and published on CQC’s
website. CQC will respond to the provider with a written response to any FACs,
and the final inspection report is usually published within a couple of days of
communication of its findings.
However, there is no clear consistency in when reports are published, and we
have seen instances where publication has taken place on the same day the FAC
response was sent to the provider and before the provider has had the
opportunity to review the response. Ridouts has previously taken issue with this
process as CQC’s rush to publish reports can have an adverse impact on providers
who are considering further legal challenge, for example through judicial review.
RATING REVIEW PROCESS
The second, and final, official route of challenge to inspection findings is CQC’s
rating review process. This can only be requested after publication of the final
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inspection report. Therefore, the report
will already be in the public domain
before a challenge has been considered.
Consequently, for providers who want to
avoid misleading ratings being
published in the first place, the FAC
process is crucial.
CQC requires providers to inform
them of their intention to submit a
rating review request within five
working days from the date of
publication of the report. Providers must
submit their full, detailed request for a
review of ratings within 15 working days
of publication of the report.
The rating review process is very
limited in its remit. It does not re-
consider any factual disagreements or
disputes over CQC’s judgements. CQC is
clear that the only grounds for
requesting a rating review is that they have failed to follow their processes for
making ratings decisions (ie the application of the ratings characteristics to CQC’s
findings as displayed in the final report). This process can be difficult to
demonstrate and published CQC figures on the success of rating review
challenges show that the vast majority of such challenges fail.
ensure they read
CQC’s set FAC
To avoid the potential adverse impact of having an incorrect inspection report
placed in the public domain, providers should ensure they read their draft
inspection reports thoroughly and raise any challenges within CQC’s set FAC
timeframe. This will ensure that any disagreements with evidence and
judgements are on the record. Even if the FAC process does not produce the
desired result, this could assist with any future arguments as to CQC’s
judgements and potential enforcement action. Following the receipt of an FAC
response, providers should consider whether they wish to pursue submitting a
rating review request, depending on the facts of the case.
At Ridouts we are experienced in supporting clients with challenges to draft
inspection reports, and empower them to challenge CQC when a report is not
truly reflective of their service.
Samantha Cox is a solicitor at Ridouts, a specialist law firm that has a core
expertise in health and social care law, www.ridout-law.com