Ridouts Associate Solicitor Samantha Burges considers how useful the CQC’s Rating Review procedure is and how you can raise a challenge to a rating you disagree with.
CQC ratings can have a substantial impact on a registered provider’s business. They are relied on by the public when choosing a preferred health or care provider, local authorities use ratings to inform contracting and placement decisions and let’s not forget the CQC itself refers to inspection histories when considering whether to take enforcement action against a provider.
It is therefore of extreme importance that there are fair and accessible processes in place for providers to pursue should they disagree with the CQC’s findings and associated ratings following inspection.
Most providers will have had experience with the factual accuracy comments (FAC) procedure where, following a physical inspection, providers are given the opportunity to review a draft version of their inspection report and submit comments and evidence to the CQC in response.
The purpose of the process is to ensure the accuracy of information being communicated to the public through the final published report. This is a fundamentally important procedure available to ensure fairness in the inspection process. However, fewer providers have encountered the CQC’s rating review procedure.
The rating review procedure is the final formal mechanism providers can follow to challenge their inspection ratings directly with the CQC. It is separate from the FAC procedure and can only be pursued once the final inspection report has been published.
If providers want to take a challenge further this would have to go outside of the CQC. For example, through an application for judicial review. Judicial review challenges can prove to be time consuming and costly and there is no guarantee of success at the end of the process – providers should not enter into such processes lightly.
It is therefore important that providers consider the merits of pursuing all the formal procedures available to them within the CQC if they disagree with inspection findings to try to get matters addressed at the first available opportunity (this is also something that will be looked at by the courts when assessing the merits of a case should a provider wish to escalate their challenge outside of the CQC’s direct remit).
How does the rating review process work?
There are three stages to the rating review process:
- The provider has 15 working days from the date of publication of the final inspection report to submit a rating review request. This is submitted through an online form on the CQC website and there is a limit of 500 words for the whole submission.
- The CQC’s independent rating review team will review the request to determine whether it meets the grounds for review.
- (a) If a request is not considered to meet the CQC’s grounds, it will be refused and CQC will write to the provider explaining why. (b) If a request is considered to have established grounds for a review, CQC staff not involved in the original inspection will review the aspects of the process that were not followed correctly and determine whether any changes need to be made to ratings as a result. The relevant Chief Inspector (or Deputy) makes the final decision.
Providers should note the relevant inspection report and associated ratings will remain published on the CQC’s website throughout this process and they will continue to be required to display their ratings in the usual way. However, the CQC displays a message on the relevant provider profile page to indicate a review is taking place. This appears in the form of a banner near the top of the profile.
If a provider is also making a complaint against the CQC or challenging enforcement action, the rating review request may be paused until these processes are complete. The CQC will inform the provider when they start to consider the requests which is usually after the complaint or challenge is complete.
What are considered valid grounds for review?
The CQC guidance confirms the only grounds for requesting a rating review are that the CQC has failed to follow its own processes for making ratings decisions. The guidance is clear that providers cannot ask for a review of ratings on the basis that they disagree with the CQC’s judgements. However, there can be a fine line between what could be considered a questioning of an inspectors judgement and a failure on behalf of an inspector to properly apply the CQC’s guidance on how they reach ratings.
In Ridouts’ experience, the main ways we have been able to demonstrate grounds for review have been by highlighting individual CQC inspectors’ failures to respond properly to factual accuracy comments, refusals by inspectors to take into account valid evidence presented to them and an incorrect application of the ratings limiters.
Importantly, a rating review does not involve a reconsideration of the evidence unless there has been a clear defect in the process. This may be difficult for a provider to establish given that the CQC will not have disclosed the underlying inspection paperwork or the internal quality assurance paperwork relating to production of the final inspection report.
In one recent rating review challenge raised by Ridouts, we were notified by the CQC that there were grounds for review based on an error indicated through the internal CQC inspection paperwork. We would never have known about the error had we not requested a review based on separate grounds. The lack of transparency in the CQC decision making process makes establishing grounds for review notoriously difficult.
It must also be remembered that the submission can only be 500 words so it is extremely important to ensure that the arguments are on-point and robust. This is where legal advice can kept to distil the submissions down to the key points.
What are the potential outcomes of a rating review?
Published CQC data (last updated on 31 December 2019) indicates that the following outcomes have occurred as a result of past rating review challenges:
- Closed due to no grounds having been established;
- Grounds established but no change to ratings;
- An increase to the rating of a key question;
- An increase in the overall rating of the service;
- A decrease in the rating of a key question;
- A decrease in the overall rating of the service;
- Both increases and decreases to the ratings for key questions;
- Report removed in lieu of a new inspection; and
- Report removed for the inspection team to reconsider.
As indicated in the outcomes listed above, providers should appreciate there is a risk that ratings can go down as well as up as a result of a rating review request. It is also worthy of note that the CQC has the power to extend any review to include any of the other ratings reached in the report in question even if they have not been directly challenged by the provider through a request. Therefore the risk extends to all ratings and not just those subject to the initial request.
What are the prospects of success of a rating review challenge?
The CQC has made amendments to the rating review process since it was first introduced in 2015. Each amendment has narrowed the parameters of the review process making it increasingly harder for providers to succeed at this stage.
The CQC has published data on the success rate of rating review requests – at the time of writing the CQC’s reported figures covered rating review request outcomes up to 31 December 2019 (reproduced in the table at the end of this article).
The data demonstrates that the vast majority of requests (approximately 72%) are closed on the basis that they have no grounds for review. In contrast, just under 6% of requests submitted resulted in a wholly positive outcome of ratings being increased either at key question level or overall. This highlights a need for the CQC to better clarify their process, in particular, what would be considered acceptable grounds, ideally using examples to make this clear to providers. Such clarification would help avoid unnecessary requests that would be rejected by the CQC at the first hurdle saving valuable time and resources for both providers and the CQC.
The lack of transparency and clear inadequacy of the rating review process makes it even more important than ever that providers properly utilise the factual accuracy process. It is the only opportunity for providers to challenge the factual content of an inspection report. In addition, the CQC will review any factual accuracy challenges raised when considering a rating review. Anything recorded through this process should be viewed by the rating review team to decide whether there are grounds for a full rating review. In our experience at Ridouts, it is usually failures in the CQC’s response to factual accuracy submissions that have enabled a Provider to successfully establish grounds for review.
Despite the obvious shortfalls of the rating review process, it’s currently the only other formal CQC mechanism in place for providers to challenge their ratings. Accordingly, it is important that if a provider does not agree with the ratings awarded and is unsure whether there is the scope for challenge, they should seek legal advice and, where appropriate, utilise the rating review process available to them. At Ridouts we can assist providers in determining whether they should pursue a rating review request and have experience of successfully challenging the CQC through this process.
CQC Rating Review Outcomes Table (Data: 31 December 2019)
|Outcome||All Providers||Adult Social Care||Hospitals||Primary Medical Services|
|Request submitted too late||14||12||0||2|
|Resolved by consent||13||12||0||1|
|Closed – no grounds||697||568||23||106|
|Correct rating process not followed:|
|Core service/key question rating(s) increased||28||15||8||5|
|Core service/key question rating(s) decreased||7||4||0||3|
|Core service/key question rating(s) mixed outcome (ratings increased and decreased)||1||0||1||0|
|Overall location/provider rating increased||27||21||3||3|
|Overall location/provider rating decreased||1||0||1||0|
|No change to rating(s)||110||85||14||11|
|Report removed (re-inspection)||2||2||0||0|
|Report removed (inspection team reconsideration)||9||7||0||2|