Whether the CQC failed to properly inspect the Nursing Home and whether it failed to act on relevant intelligence about the Nursing Home
15. Mr and Mrs B said CQC should have arranged a ‘responsive inspection’ to review care at the home and secure evidence in June 2019 after Mrs F’s incident occurred. They said despite raising concerns about safeguarding at the Nursing Home with CQC, it did not properly inspect the home on 19 November 2019. They said the CQC’s inspection did not take account of previous inspection reports, safeguarding concerns or the breaches of statutory notification which were mentioned in the safeguarding vulnerable adults review board meeting on 27 August 2019.
16. The relevant standards for this aspect of the complaint are:
• The Care Act 2014 sets out local authorities are responsible for taking action about safeguarding concerns regarding children and vulnerable adults in their areas;
• The Safeguarding Adults Policy said Safeguarding was everybody’s business. It set out a tiered approach to safeguarding action which started with local authorities. Local authorities investigated particular/individual incidents and complaints, as well as taking disciplinary action against individual staff members. Next the Clinical Commissioning Groups (CCGs) and NHS England would review contracts for care providers. Lastly, the CQC would:
• ‘Register, monitor, inspect and regulate services to make sure they provide people with safe, effective, compassionate, high quality care • Intervene and take regulatory action on breaches • Publish findings including performance ratings.’
• The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out standards for providers. CQC use these measures when rating providers to set standards below which care must never fall. These include: • Regulation 13 – Safeguarding service users from abuse and improper treatment.
• The Inspection Guidance sets out CQC’s approach to adult social care inspections. For residential settings, such as the Nursing Home, CQC considered if they were safe, effective, caring, responsive to people’s needs and if it was well led. The Inspection Guidance also said:
• information of concern provided the CQC with helpful and useful intelligence about care provision and it used this information to help inform its inspections.
• Level 1 information is where an adult, or child, has experienced, or is at risk of abuse or neglect. Level 1 information should be passed to the relevant inspector within 24 hours of receipt, flagging it as requiring immediate attention. The relevant inspector will then refer information to the local authority or Police within a maximum of 24 hours because the Police and local authority have legal responsibility to respond in the first instance. The CQC said the only circumstance where an inspector would not take this action is if they had already been made aware of the incident from another source and have already made the local authority and or Police aware.
• Following receipt of information of concern, the CQC might consider there was a breach of CQC standards. In which case CQC could carry out a responsive inspection, bringing forward a planned inspection or contacting the provider to clarify the facts.
• The Inspection Guidance also said there are two types of inspections – comprehensive and focused. Further CQC ‘carry out inspections in response to risk’. There is no timeframe included in this guidance. In relation to inspective residential care services, the Inspection Guidance said the inspector:
• [prior to the inspection] should contact stakeholders for feedback and records this on the [inspection] planning tool; • [during the inspection] look at the environment; • Speak with people who use the service; • Speak with staff (including relevant professionals, managers, staff and volunteers); • Corroborate information given or follow up on issues regarding: • Supervision and care records; • Feedback from people using the service and carers; and • Incident, safeguarding and complaint records.
• The Serious Injury Statutory Notification form, which care providers are required to complete in the event of a resident experiencing a serious injury, says if there is a ‘serious injury to a person who uses the service, notifications must be submitted without delay.
• The Specific Incident Policy sets out how CQC should be informed about specific incidents and what information inspectors should consider about specific incidents when inspecting an organisation. It says: • there is an expectation that inspection staff will examine specific incidents where patients and service users have died, sustained avoidable harm or been exposed to a significant risk of avoidable harm; • [inspectors will] gather intelligence including previous reports, enforcement safeguarding, notifications and information about any other concerns.
• The Ombudsman’s Principles say good administration means ‘getting it right’ – public bodies should take account of legislation as well as its own policy and guidance. Decision making should make relevant considerations and ignore irrelevant ones.
CQC’s handling of the intelligence it received about the Nursing Home from Mr and Mrs B
17. On 30 July 2019, Mr B contacted the CQC to raise their concerns about Mrs F’s care and treatment at the Nursing Home. CQC records of the call show Mr B told CQC about the incident on 29 June, where Mrs F had attempted suicide by wrapping the call bell cord around her neck. He made it clear he believed there was a safeguarding issue in terms of the care provided for his mother-in-law. The same day, CQC flagged Mr B’s concerns to a CQC inspector. The CQC inspector assessed Mr B’s concerns on the same day Mr B submitted them, 30 July. On 31 July 2019 the CQC inspector appropriately passed Mr B’s concerns about the Nursing Home to the local authority to look into. Concerns were passed to the local authority within 24 hours of receipt. This was in line with both the Care Act 2014 and the Inspection Guidance.
18. According to the Safeguarding Adults Policy, local authorities are primarily responsible for investigating individual incidents and complaints about safeguarding. The policy also explains CQC had an interest in the safeguarding matters raised by Mr and Mrs B in relation to its role as a regulator of the services provided for Mrs F. The local authority held a safeguarding vulnerable adults (SVA) review board meeting on 27 August 2019. The CQC inspector attended this meeting. The agreed outcome of the review board meeting was that, on the balance of probabilities, it was likely that harm had occurred to Mrs F.
19. In light of this, CQC decided to bring forward an inspection of the Nursing Home. The Nursing Home was due to be inspected by CQC between January and March 2020. However, following the review board meeting, it brought its inspection forward to 19 November 2019. Having referred their concerns to the local authority in line with the Safeguarding Adults Policy, we can understand why CQC waited for the outcome of the SVA review board meeting in August 2019 before deciding how best to respond. It was at this point the CQC received confirmation Mrs F was subject to harm and considered a breach in standards might have occurred. This is in keeping with the Inspection Guidance, which said following receipt of information of concern, the CQC might consider there was a breach of CQC standards. In which case CQC could carry out a responsive inspection, bringing forward a planned inspection.
20. CQC undertook its inspection within three months of the SVA review board meeting. This was two to five months earlier than it originally planned to inspect. On the face of it, three months seems a long time to wait to inspect the home given the seriousness of issues raised and the conclusions of the SVA review board. That said, the Inspection Guidance gives no timeframe for how long it should take between concerns about a service being raised and an inspection taking place. Furthermore, there is evidence CQC was liaising with other organisations and parties in the months leading up to the inspection. Mr and Mrs B said following the SVA review board meeting, they had no further contact with CQC until 23 January 2020 when they sought an update from CQC.
21. We can see why Mr and Mrs B believe the inspection should have taken place sooner given the seriousness of the concerns they raised. However, taking account of the evidence above, we can see in the three months between the SVA review board meeting and CQC’s inspection of the Nursing Home it was keeping abreast of developments in the case. Considering this along with the fact the Inspection Guidance gives no timeframe for how long it should take to arrange an inspection, overall we consider CQC acted appropriately on the intelligence it received from Mr and Mrs B. We find no failing in CQC’s actions in relation to this aspect of their complaint.
CQC’s consideration of relevant evidence about the Nursing Home when planning inspection
22. Mr and Mrs B believe they should have been contacted in advance of the Nursing Home inspection to discuss their concerns in more detail. The CQC inspector set out a plan for inspecting the home in an inspection planning tool document on 7 November 2019. The plan noted the home had last been inspected on 25 May 2017 and its overall rating at that point was ‘good’. The plan also noted CQC had received two complaints about the Nursing Home in the previous 12 months and one of those was about safeguarding. The form does not confirm whether this was the complaint it received from Mr and Mrs B.
23. There is no indication in the planning tool or in the records provided by CQC the inspector contacted Mr and Mrs B to discuss these matters. The Inspection Guidance says, prior to the inspection, the CQC inspector should contact stakeholders for feedback and record this on the planning tool. In this context, stakeholders refers to all parties who have an interest in CQC inspections - organisations like the Nursing Home, the local authority, the local CCG and the police. As explained above, CQC was monitoring the actions of these organisations. CQC told us speaking to complainants is not always part of the inspection planning process. It said when concerns are raised with the national complaints team, they pass those concerns to an inspector who will decide whether to contact the person making the complaint. Again, this is what happened. At the point of drafting the inspection plan, the CQC inspector was fully aware of Mr and Mrs B concerns both from the call to CQC on 30 July 2019 and the review board meeting on 27 August. As part of the intelligence gathering process (which is separate from the inspection process) the CQC liaised with and sought information from, albeit indirectly, the person raising matters of concern. This was in line with the inspection guidance. We see no need reason CQC were required to contact Mr and Mrs B again at the inspection stage given further clarification from them was not required. In light of this, we find no failing in the fact the CQC inspector did not contact Mr and Mrs B prior to the inspection. We acknowledge Mr and Mrs B may disagree with our conclusion on this matter but we hope they can see why we reached it.
CQC’s Inspection of the Nursing Home
24. Turning to CQC’s inspection of the home, Mr and Mrs B said CQC failed to inspect the home properly. They said CQC’s inspection on 19 November 2019 did not take account of previous inspection reports, safeguarding concerns or the notification breach identified in the review board meeting (paragraph REF _Ref146826546 \r \h \* MERGEFORMAT 11).
25. According to the Serious Injury Statutory Notification form, the Nursing Home should have notified CQC about Mrs F’s series incident on 29 June 2019 ‘without delay’. The Specific Incident Policy says the inspector should have examined Mrs F’s specific incident and gathered intelligence which included reference to previous reports, enforcement, safeguarding and any statutory notifications received.
26. When inspecting the home, the CQC inspector should have taken account of the Health and Social Care Act 2008 (regulated activities) regulations 2014, the Safeguarding Adults Policy and the Inspection Guidance (paragraph REF _Ref146826743 \r \h \* MERGEFORMAT 16). These say CQC should have inspected the Nursing Home to ensure it provided safe, effective, compassionate and high-quality care. It should have taken action in light of any breaches identified and published its findings. It should also have acted to safeguard service users from abuse and improper treatment. During the inspection, the CQC inspector should have looked at the environment, spoken with people who used the service, spoken with staff and corroborated information given and/or followed up on issues regarding supervision and care records, feedback from people using the service and carers and any safeguarding or incident concerns.
27. The notes of the Nursing Home inspection on 19 November 2019 show the CQC inspector did take account of the previous inspection report from May 2017 – they noted the Nursing Home’s previous rating was good. That inspection report, from May 2017, showed the Nursing Home raised no issues for safeguarding and statutory notifications. To this extent, the CQC acted in keeping with its inspection processes and the Inspection Guidance – the CQC inspector took relevant information into account.
28. However, there is also evidence which questions whether, when inspecting the Nursing Home, CQC fully took into account a particular safeguarding incident at the Nursing Home or a statutory notification it received. The CQC received a statutory notification in advance of the inspection on 19 November 2019. On 15 August, the manager of the Nursing Home submitted a ‘Notification of a serious injury to a person who uses the service’ form to CQC. It concerned the incident with Mrs F on 29 June. This notification was not submitted to CQC ‘without delay’ in line with the Serious Injury Statutory Notification form. The delayed reporting of the incident by the Nursing Home was noted also in the SVA review board meeting on 27 August. The CQC inspector was present at that meeting and raised the issue. CQC told us while a formal notification should be completed and submitted digitally to it within 24 hours of an incident, it also accepts notification can be submitted via email or, in some cases verbally via telephone call, without the use of statutory notification documentation. It acknowledged that while submitting the form the way the Nursing Home did was a breach of the regulations, in those circumstances it would be unlikely to pursue with any form of enforcement. Furthermore, CQC said it was already aware of the serious incident via Mr B’s call on 30 July 2019. CQC said following this, a safeguarding referral was made within 24 hours which was in line with the Care Act 2014 and the Inspection Guidance.
29. CQC told us it agreed there was a delay by the Home submitting a serious incident notification in relation to the incident on 29 June 2019. It said this was due to the registered manager being on leave at the time. It said this was a moot point because it already took action following Mr B’s call on 30 July 2019, by making a safeguarding referral. It said when the statutory notification was received from the Home on 1 August, its inspector was already aware of all events which had occurred including the police visiting the Home, actions taken by the local authority and the concerns raised by Mr B.
30. In relation to how the CQC weighed up this evidence when undertaking its inspection of the Home, the CQC said its inspector did take account of the serious incident statutory notification. CQC provided its ‘complete’ inspection planning document. It said the one it initially provided during our investigation had only been partially completed. The revised planning document lists all historical incidents at the home. The records provided by CQC only list one incident at the home involving safeguarding – Mrs F’s serious incident. The CQC provided screenshots of Mr B’s call notifying it about the serious incident on 29 June 2019. It said the inspector had access to these records and therefore was fully aware of the incident when the inspection took place. The CQC referred to its inspection report which says prior to the inspection, it reviewed all information held about the Home in the form of statutory notifications and any safeguarding incidents. The CQC noted the report refers to the Home keeping records of any incidents and taking appropriate steps to mitigate the risk of further incidents.
31. CQC’s comments provide some evidence Mrs F’s incident was taken account of during the inspection. That said, CQC have acknowledged there was a delay in the Home reporting the serious incident. The fact Mr B notified them about the incident is immaterial to the fact the incident occurred on 29 June 2019 and the home notified the CQC, albeit by way of seeking advice on how to make a serious incident report, on 1 August 2019. This was the first time the Home contacted CQC about Mrs F’s incident. At that point it told CQC the manager of the home had been on holiday which was why there was a delay reporting the incident. We cannot see the CQC has provided any evidence which indicates it did anything to investigate the delay in the interim period. CQC admitted it knew about the incident via Mr B. However, it did explore why there was a significant delay between Mrs F’s incident occurring on 29 June and it being reported to CQC by the Nursing Home manager on 1 August 2015. Some note was made of Mrs F’s incident in CQC’s inspection planning. However, we consider CQC should have done more to explore why there was a delay in the Home reporting the incident instead waiting for the Home to contact CQC. It is our view the fact CQC did not do so, fell below the relevant standard, meaning The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, the Inspection Guidance or the Significant Incident Policy, it was maladministration. We can understand why Mr and Mrs B felt compelled to complain about this matter.
The CQC’s communication with the B’s about the concerns they reported
32. Mr and Mrs B said CQC failed to properly communicate with them despite the seriousness of the concerns and issues they reported to CQC. They told us they expected the CQC to keep them updated with its progress and decisions after the review board meeting on 27 August 2019.
33. The relevant standards for this aspect of the complaint are:
• CQC’s January 2016 policy on ‘Responding to information from individuals about their experiences of care’ (the Communication Policy). This sets out what happens when people contact CQC to raise concerns about their experience of the care provided by one of its registered service providers. The Communication Policy says when someone contact CQC with a concern:
• [CQC will] manage expectations about what CQC can and cannot do for them as individuals [including explaining it] does not have power to investigate or resolve individual complaints about care services on behalf of individuals; and • [CQC will not provide] any other form of feedback about what happened as a result of the information received.
The Communication Policy says CQC recognises many people expect to receive more feedback from it about what it has done in response to the information shared with it. CQC is not resourced to be able to provide individual feedback to people about what action it has taken in response to the information they shared with it.
• The Ombudsman’s Principles say good administration means ‘being customer focused’ – public bodies should do what they say they are going to do.
34. Mr B first contacted CQC to raise concerns about the Nursing Home on 30 July 2019. As mentioned above, CQC assessed his concerns and passed them to an inspector. The inspector passed their concerns to the local authority within 24 hours. As noted above, these actions were appropriate (paragraph REF _Ref146995487 \r \h \* MERGEFORMAT 17).
35. The Communication Policy makes clear CQC had no ongoing relationship or duty to communicate with Mr and Mrs B. CQC told us the Communication Policy is clear in that CQC may not contact people unless further information is needed. It said it should be clear from its own policy that that it would not respond to every concern raised or complaint received about care services and it met its legal obligations as set out in its own policy. CQC said when Mr B contacted it on 30 July 2019, he was advised about the role of CQC as this forms part of the standardised script for all call handlers in the National Customer Service Centre. CQC said its role and purpose were also explained in correspondence with Mr and Mrs B on 22 December 2020.
36. Ultimately, the B’s provided the CQC with valuable intelligence and CQC had a duty to act on any relevant information provided to them. The Communication Policy explains CQC would not investigate individual incidents or respond directly to Mr and Mrs B correspondence. We understand CQC’s position on this. However, our Principles go further in that it is our view CQC should have been open and accountable by being upfront with Mr and Mrs B about how it would or would not engage with them. Based on the evidence we have seen, this did not happen. We acknowledge CQC’s role is different to ours. However, it appears CQC’s role was not made clear to Mr B during his initial contacts. Had it been, it’s more likely than not, he would not have complained about a lack of communication from CQC. The Communication Policy says CQC will ‘manage expectations about what CQC can and cannot do for them as individuals’. This did not happen in this case. We agree CQC’s role was set out in the inspection manager’s letter to Mr and Mrs B on 22 December 2020. However, at no point does that letter address Mr and Mrs B’s complaint that they expected CQC to keep them updated with its progress and decisions following the review board meeting on 27 August 2019. This issue was addressed in CQC’s letter to the complaints on 19 April 2021.
37. In light of the above, CQC should have told the B’s in August 2019 what its process was especially given Mr B was in contact with the CQC inspector at that point. We fully understand it is not CQC’s role to maintain an ongoing relationship with individuals who provide information about their experiences of care. However, it remains our view CQC should have been explicit about this upfront. In this case, this means from August 2019. The CQC did not inform the B’s of this until 19 April 2021. Taking account of this, we find CQC was not open and accountable about its approach to handling information of concern between August 2019 and April 2021. We provisionally find this was maladministration and we can understand why Mr and Mrs B complained about this issue.
Whether CQC followed its own enforcement policy and guidance in relation to the Nursing Home
38. Mr and Mrs B said CQC failed to follow its own enforcement policy and guidance in relation to the Nursing Home. They said CQC failed to comply with its ‘Decision Tree’ policy and did not hold a management review meeting in order to document their rationale for all decisions and to provide an audit trail.
39. The relevant standards for this aspect of the complaint are:
• The CQC’s Enforcement Policy from February 2015 (the Enforcement Policy) and in addition, the CQC’s Enforcement Decision Tree from February 2015 (the Enforcement and Decision Tree). These included that:
• ‘The starting point for considering the use of all [CQC] enforcement powers is to assess the harm or the risk of harm to people using a service.
• CQC will not tolerate breaches that add up to inadequate care, whether they give rise to a risk of harm or not. Where there are failures in care that do not improve, [CQC] will be prepared to use our enforcement powers.
• CQC will only take action that we judge to be proportionate. This means that our response, including the use of enforcement powers, must be assessed by us to be proportionate to the circumstances of an individual case. Where appropriate, if the provider is able to improve the service on their own and the risks to people who use services are not immediate, we will generally work with them to improve standards rather than taking enforcement action.
• The CQC will generally intervene if people are at an unacceptable risk of harm or providers are repeatedly or seriously failing to comply with their legal obligations. There was a full range of possible responses but the CQC should recognise the importance of working cooperatively with providers and its limited enforcement resources.
• CQC use a four stage decision making process to reach enforcement decisions (known as the enforcement decision tree). These are ‘initial assessment’ (where the case is considered at a structured management review meeting); legal and evidential review (where CQC checks the evidence held demonstrates a breach of regulations and is sufficient to enable CQC to take enforcement action); selection of appropriate enforcement action; and final review (where a final decision about which enforcement action to take is made). The CQC expected relatively few cases to proceed to stage two of its enforcement process.
• The CQC would also consider factors for prosecution such as the gravity of the incident, potential for wide learning points for providers may mean they prioritise a single case to send a broad message.’
• The Ombudsman’s Principles say good administration means ‘getting it right’ – public bodies should take account of legislation as well as its own policy and guidance.
40. As already mentioned, Mr B first contacted CQC to raise concerns about the Nursing Home on 30 July 2019. CQC received further information about his concerns at the first review board meeting on 27 August 2019. In line with the Enforcement Policy and the Decision Tree Policy, CQC’s starting point should have been should have been to assess the harm or the risk of harm to people using a service, in this case, the Nursing Home. We agree, in light of the concerns raised by Mr and Mrs B, CQC inspected the Nursing Home. In fact, it brought its inspection forwards to 19 November. This was appropriate. The inspection concluded there was no ongoing risk of harm to residents at the Nursing Home. However, this conclusion was partly affected in that it did not fully take into account the statutory serious incident notification received from the Nursing Home on 15 August 2019.
41. The Enforcement Policy and the Decision Tree Policy say CQC will only use enforcement powers, if assessed by CQC to be proportionate to the circumstances of an individual case. In light of the statutory notification it received, the CQC inspection should have considered if this represented a breach that added up to inadequate care at the Nursing Home. There is no evidence it did so. This was not in line with the Enforcement Policy and the Decision Tree Policy. We provisionally find this was maladministration.
Whether CQC took too long to resolve Mr and Mrs B complaints about the Nursing Home and whether its response contained factual errors and failed to resolve their concerns
42. Mr and Mrs B said CQC failed to resolve their complaints about the Nursing Home, its responses contained factual errors and it and took too long to respond.
43. The relevant standards for this aspect of the complaint are:
• The CQC’s internal Complaint Policy and guidance (the Complaint Policy) in place at the time Mr and Mrs B complained in November 2020, and external complaints procedure said:
• A complaint is an expression of dissatisfaction regarding our actions, or lack of action, or the standard of service provided, by us, or on our behalf. However it is communicated, it requires a response.
• It aimed to provide appropriate and timely resolution for all parties.
• It aimed to try and complete any investigation and provide a written reply within 30 working days (six calendar weeks). ‘This will tell you everything we have done, or plan to do, to put things right. If we cannot reply in that time, we will tell you about the delay and explain the reason for it.’
• The UKCG Complaint Standards which, although issued in 2022, are applicable retrospectively because they are a culmination of existing pieces of guidance, including our Principles of Good Complaint Handling. The UKCG Complaint Standards say an effective complaint handling system:
• gives fair and accountable responses that set out what happened and whether mistakes were made and take action to make sure any learning identified is used to improve services; and • is through and fair when looking into complaint and gives an open and honest answer as quickly as possible.
Time taken to respond to Mr and Mrs B
44. CQC told us there was no formal complaint handling of Mr and Mrs B’s concerns by CQC as it no legal powers to investigate individual issues relating to care and treatment. It said the matter was also not addressed under the complaint procedure as matters relating to regulatory decisions do not fall under the scope of its National Complaints Team. As such, the matter was addressed by the Inspection Team with input from its Legal Team.
45. Mr and Mrs B formally complained to CQC on 18 November 2020. We consider this a complaint because the title of the B’s correspondence said ‘formal complaint about...’. Mr and Mrs B set out their specific concerns about the CQC, their reasons for complaining to CQC including why they remained dissatisfied with CQC’s actions and requested CQC fully review and investigate the matters raised. Their concerns not only focused on CQC’s actions when inspecting the home but how its acted following the inspection and how it communicated with them. They clearly stated they were raising a complaint. At that point, they had been in ongoing communication with CQC since 30 July 2019. As such, it should have been clear to CQC the B’s were expressing their dissatisfaction regarding its actions, lack of action or standard of service provide by CQC or a on its behalf. As such, CQC should have taken account of its own Complaint Policy and considered their communication as a complaint and provided a timely and appropriate resolution. In light of this, CQC should have aimed to try and complete any investigation of Mr and Mrs B’s concerns and provide a written reply within 30 working days (six calendar weeks).
46. In line with the Complaint Policy CQC responded to Mr and Mrs B’s first complaint letter within six weeks, on 22 December 2020. Mr and Mrs B complained again on 24 January 2021. CQC provided its second response on 19 April. Mr and Mrs B complained a third time on 2 June 2021. CQC provided its third and final response on 8 October.
47. Taking account of the evidence above, it took CQC almost 12 weeks to respond to their second complaint. It took CQC over 16 weeks to respond to their third complaint. We agree with Mr and Mrs B it took CQC too long to respond to their complaint. CQC did not act in accordance with the Complaint Policy in that it did not provide Mr and Mrs B with a written reply to their second and third complaints within six weeks of receipt. CQC did not get it right in that it did not adhere to its policy and guidance in relation to the timeframe for completing and managing complaints. We provisionally find this was maladministration and can understand why Mr and Mrs B asked us to investigate this matter.
Whether CQC failed to resolve the complaint and if its complaints response contained factual errors
48. As noted above, Mr and Mrs B formally complained to CQC on 18 November 2020. The key concerns they raised were broadly the same issues set out in paragraph REF _Ref148619000 \r \h \* MERGEFORMAT 4, that CQC failed:
• to properly inspect the Nursing Home, and failed to act on intelligence it received about the Nursing Home prior to the inspection and did not take account of relevant evidence during the inspection; • to properly communicate with Mr and Mrs B in light of the concerns and issues they reported to the CQC; and • to follow its own enforcement policy and guidance in relation to the Nursing Home.
In looking at whether the CQC resolved Mr and Mrs B’s concerns and if there were factual errors in its explanations, we considered whether it reached the same or similar conclusions that we did in relation to the points above. We looked at the three responses CQC provided to Mr and B’s complaint. These were provided on 22 December 2020, 19 April 2021 and 2 June 2021. We considered these responses in light of the UKCG Complaint Standards.
49. CQC provided Mr and Mrs B with detailed, evidence-based responses on three occasions. These responses directly addressed and responded to the issues they raised. CQC investigated the issues raised thoroughly and provided an open and accountable response which acknowledged where it got things wrong. CQC provided Mr and Mrs B with direct, evidence-based explanations and gave reasons for decisions taken in Mrs F’s care. CQC also set out what learning had been taken from Mrs F’s experience of care at the Nursing Home. That said, there were gaps in CQC’s response. We provisionally consider those gaps amounted to maladministration. We based these conclusions on the following evidence.
50. We found CQC acted appropriately on the intelligence it received from Mr and Mrs B about the Nursing Home in that it passed their concerns to the local authority without delay and brought forward its planned inspection of the Nursing Home. In CQC’s response to Mr and Mrs B on 22 December 2020, it said the Nursing Home was initially due to be inspected between January and March 2020. It said following the review board meeting, it brought the inspection forward to November 2019. It said it was not realistic, practical or possible for it to inspect every service it receives concerns about immediately. CQC said it would prioritise an inspection in which they received information that ‘all’ people who use a particular service were at risk of harm. CQC said after being alerted to safeguarding concerns by Mr and Mrs B, its inspector raised a safeguarding concern with the local authority immediately. It said this resulted in the safeguarding investigation which subsequently took place and in which the inspector and Mr and Mrs B participated. CQC said the statutory responsibility for safeguarding lay with the local authority and the CQC must have regard to their assessment. Mr and Mrs B said a safeguarding investigation was already underway when CQC notified the local authority. They said Mr B alerted a social worker on 20 July 2019.
51. CQC provided further explanation on how it acted on the intelligence received in its third response to Mr and Mrs B on 2 June 2021. It acknowledged it made a mistake in its 22 December 2020 response where it said CQC would prioritise an inspection in which they received information that ‘all’ people who use a particular service were at risk of harm. It said in fact it was obliged to act upon any information received regarding the welfare of any service user whether it is an individual or a group of service users. CQC said if information is received which indicates that a service user may be at risk of serious harm, CQC inspectors will consider this information and if required carry out an inspection. They said following the incident on 29 June 2019, Inspector made an immediate safeguarding referral to the Local Authority and assessed whether there was any immediate or ongoing risk to Mrs B’s mother. CQC said a decision was made that as the registered provider had removed the call bell cord there was no immediate or ongoing risk of harm and the Nursing Home continued to be monitored by CQC.
52. In relation to Mr and Mrs B’s complaint CQC did not act on intelligence it received about the Nursing Home prior to the inspection, in its 22 December 2020 response it said, it said the Nursing Home had not been subject to any investigations for organisational abuse in the past or more recently. CQC said the Nursing Home was initially due to be inspected between January and March 2020. It said following the review board meeting, it brought the inspection forward to November 2019. Mr and Mrs B challenged CQC’s comments that the Nursing Home did not have a history of serious safeguarding incidents. In its response on 19 April 2021, CQC explained while there were a number of enquiries raised in its database in relation to the Nursing Home in 2019, the only safeguarding/serious incident concerns recorded related to Mrs F. The evidence above shows CQC provided a fair and accountable response which set out what happened in relation how it acted on intelligence it received from Mr and Mrs B about the Nursing Home. This was in line with the UKCG Complaint Standards.
53. On the matter of whether CQC took account of relevant evidence during the inspection, in its 22 December 2020 response, it referred to section 4(1) (e) of the Health and Social Care Act 2008 which it said set out the requirement for it be proportionate in terms of any enforcement action it took and to target this only where needed. It said in light of this, there was always an element of professional judgment required to determine whether a service is meeting regulations and to determine the most proportionate course of action. It said it inspected the Nursing Home in November 2019 and found it met the fundamental standards expected of a care service. As noted earlier in this report, there was a delay in the Nursing Home reporting Mrs F’s serious incident to CQC. The notification was only submitted to CQC after CQC passed Mr and Mrs B concerns to the local authority to explore and there was an SVA review board meeting. We provisionally found maladministration in the fact there is no evidence CQC identified this issue in its inspection report on 19 November 2019 or explored this issue during its inspection. CQC did not directly address this issue in its complaints response. We note in CQC’s response on 2 June 2021, it explained to Mr and Mrs B it had carried out a retrospective review of the incident in June 2020 to ensure it had properly addressed matters and to see if a criminal prosecution was appropriate. This is evidence CQC did act on intelligence it received, albeit 19 months after its inspection of the Nursing Home, and it explained its actions to Mr and Mrs B. Despite this, the fact remains, CQC did not acknowledge its failure to fully explore the statutory notification note it received or the Nursing Home’s delay in submitting it at any point during local resolution. This was not in keeping with UKCG Complaint Standards in that CQC did not give Mr and Mrs B a fair and accountable responses that set out what happened or acknowledge mistakes were made. We provisionally find this was maladministration.
54. Turing to Mr and Mrs B’s complaint that CQC did not properly communicate with them, we provisionally found CQC should have told the B’s in August 2019 about the communication process when Mr B was trying to contact the CQC inspector. Had it done so, it would mean the B’s would not have expected ongoing communication with the CQC about the action it had taken regarding the safeguarding concern they raised. The CQC informed Mr and Mrs B about this in its response to their complaint on 19 April 2021. CQC said it could not investigate individual complaints about care services as it did not have powers to resolve them on the complainants’ behalf. CQC said it was not possible to provide regular updates to people who provided it with information about their experiences of care or to provide them with support or counselling. It said it would not be appropriate for CQC inspectors to do so. It remains our view CQC was not open and accountable about how it would communicate with Mr and Mrs B. We acknowledge CQC provided an explanation which addressed the concerns they raised about how CQC communicated with them, but his explanation was given much later than it should have been provided. This was not in line with the UKCG Complaint Standards. This was maladministration.
55. In relation to whether CQC failed to follow its own enforcement policy and guidance, we provisionally found a failing in the fact, given the statutory notification it received, it did not at the time explore this through its decision tree model and establish why there was a delay submitting it. CQC explained its decision tree model and process during local resolution. In CQC’s response on 19 April 2021 it said, outside breaches of regulations identified during inspection, it could only take enforcement action where a registered person (provider or manager) is found to have caused avoidable harm to a service user and that harm is provable ‘beyond a reasonable doubt’. CQC said this was the threshold for criminal prosecution in the UK. It said this was different to the test used in a safeguarding investigation in relation to whether harm occurred. CQC said that test is done on ‘balance of probabilities’. CQC said it had reviewed all the information it held about Mrs F’s care while at the Nursing Home and concluded that its assessment that Mrs F’s incident did not meet the threshold for further investigation was appropriate and in line with its Enforcement Policy. In CQC’s response on 2 June 2021, it explained it re-reviewed the evidence available from the incident in June 2019 to see whether a criminal prosecution was appropriate (the initial inspector had felt there was insufficient evidence) and there was insufficient evidence to pass the evidential stage of the code of prosecutors. CQC shared these findings with Mr and Q. We cannot say we disagree with this conclusion. That said, we fully acknowledge and understand why Mr and Mrs B disagree with the outcome of CQC’s review. While we acknowledge there was a failure by CQC to properly consider the statutory notification, the fact remains CQC explained the reasons for its inaction, proceeded to review the facts of the case again and shared the outcome of this review with the complainants. These actions were in line with the UKCG Complaint Standards.
56. Taking account of the evidence above, overall we are satisfied CQC’s response to Mr and Mrs B complaints were largely appropriate. That said, there were two gaps in the response it provided. CQC did not acknowledge the delay in communicating its role in acting on the intelligence Mr and Mrs B provided. Nor was CQC fully open and honest about its failure to explore and act on the statutory notification it received from the Nursing Home. These two issues were not in line with The UKCG Complaint Standards. We provisionally find maladministration in relation to these specific aspects of Mr and Mrs B’s complaint.
Summary of our findings
57. We have provisionally found no failings in relation to CQC’s:
• handling of the intelligence it received about the Nursing Home from Mr and Mrs B; and • decision not to contact Mr and Mrs B when planning its inspection of the Nursing Home.
58. We have provisionally found failings in response to the following issues:
• CQC did not identify or explore why there was a delay submitting a statutory notification it received or take proper account of the statutory notification when inspecting the Nursing Home; • CQC was not upfront about how it would handle information of concern reported by Mr and Mrs B; and • CQC did not adhere to its own policy and guidance in relation to the timeframe for responding to Mr and Mrs B’s complaint or our complaint standard in relation to the explanations it provided.
Impact of the failings identified and our decision
59. Mr and Mrs B said they have experienced distress and upset pursuing their complaint. They said having to challenge CQC’s incorrect and incomplete responses has meant they have needed to relive the incident and poor service Mrs F experienced at the nursing home. They said they have no trust or confidence in CQC as a regulator as their responses to the concerns raised were so poor.
60. We identified a failure by CQC in that its inspector did not take proper account of a statutory notification it received when it inspected the Nursing Home or explore why there was a delay by the Nursing home submitting it. CQC should have considered the breach identified in their inspection through its enforcement tree but there's no evidence it did so at the time of the inspection. We have considered what would likely have happened in the absence of maladministration. The evidence shows when CQC held a management review meeting in July 2021 to look at the case again to see whether a criminal prosecution was appropriate, it concluded there was insufficient evidence to pass the evidential stage of the code of prosecutors. This was because there was no clear evidence Mrs F was exposed to significant risk of harm. CQC’s decision also took account of the SVA review board’s involvement and the fact the Nursing Home had put in place an action plan. It concluded Mrs F’s incident was not foreseeable and the Nursing Home had done all it could to avoid her experiencing harm. Taking account of this evidence, on the balance of probabilities, it is more likely that had CQC used its enforcement tree at the time of the inspection, it would have reached the same conclusions. In light of this, we cannot say on the balance of probabilities, that the events would have unfolded differently. Rather, it is more likely than not that the CQC would not have taken enforcement action against the Nursing Home.
61. Mr and Mrs B first contacted CQC to share information of concern on 30 July 2019. CQC was not upfront with Mr and Mrs B about what it would do in response to the intelligence they shared or how it would communicate with them. In fact, CQC did not explain this to them until April 2021. In light of this, we can understand why Mr and Mrs B felt frustrated and worried the CQC was not acting on their concerns.
62. Their feeling of not being listened to was compounded when they saw the CQC report in December 2019 which explained CQC had inspected the Nursing Home and concluded there were no issues. The report did not explore the statutory notification CQC received, why it was delayed or refer to any of the specific concerns raised by Mr and Mrs B. We can fully understand why this was both surprising and upsetting for Mr and Mrs B. Understandably, Mr and Mrs B continued to try and elicit answers from CQC to address their concerns.
63. When these explanations were not forthcoming, they formally complained to CQC in November 2020. They rightly expected a prompt and through response to their concerns. We acknowledge overall, CQC provided a thorough response. However, this was not provided promptly in line with CQC’s own guidance on responding to complaints and there were gaps in the response it provided in relation to the statutory notification it received from the Nursing Home and in its failure to be upfront about how it would communicate with them about the concerns they raised.
64. Taking account of the above, we recognise Mr and Mrs B experienced distress and upset pursuing their complaint between July 2019 and April 2021, which was the point at which CQC explained how it acted on the intelligence they shared and why it did not communicate with them. We can see how the distress they experienced was compounded by the delay in CQC fully addressing their concerns from when they first complained in November 2020 to date. This understandably led to them losing confidence in CQC. This was an injustice to Mr and Mrs B which occurred as a result of the maladministration we found.