In October 2018 and March 2022, the Care Quality Commission (“CQC”) carried out inspections of care homes provided for and run by Calcot Services for Children Limited (“Calcot Services”). After both inspections, CQC found those care homes to be safe, effective, caring, responsive and well-led, awarding them an overall rating of ‘Good’.
However, a BBC investigation published in June 2022 uncovered serious failings throughout various Calcot run premises. How did these failings fall through the cracks, and what wider lessons can be learned in order to prevent a repeat?
Calcot Services is regulated by the Office for Standards in Education (“Ofsted”) and the Care Quality Commission (“CQC”). Over the past 30 years they have maintained overall ratings of ‘Good’ and ‘Outstanding’ from both regulators, with conclusions that “young adults were protected from all forms of abuse”[1] and “Staff were trained in safeguarding people and knew what action to take if they identified any concerns”.[2]
Nevertheless, following a lead from a whistle blower, a recent BBC investigation uncovered evidence of abuse and safeguarding failings in various Calcot homes and schools, including allegations of grooming, rape and sexual assault. Failures to report serious incidents to the regulators such as abscondments and suicide attempts were also found, as well as failings to provide dedicated caring and teaching staff, despite having received specific Local Authority funding to do so.
Ofsted has subsequently carried out its own inspection and has issued Calcot Services with a Compliance Notice relating to a range of issues contrary to Regulation 13 of The Children’s Homes (England) Regulations 2015 including management failings, staff competency, staffing provision and use of monitoring and review systems required to make continuous improvements in the quality of care provided. A recent BBC report in August 2022 notes that following seven re-inspections by Ofsted, five homes were rated inadequate with three of those now closed.
CQC and Ofsted often have interrelated regulatory responsibility over organisations involved in the care of children.
Described as “horrendous” by the Children’s Commissioner, the BBC findings call into question the processes and procedures applied in care settings to ensure good governance. But the question must be asked whether these regulators have sufficient resource to thoroughly inspect regulated businesses and the technical skills to identify serious failings. Given the stark contrast of findings by the BBC compared with previous inspection reports by the regulators, there have been urgent calls to reform the current regulatory system. But what are the issues with it?
Service providers of care are bound by the obligations set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”). Children’s care is subject to the Children’s Homes (England) Regulations 2015. A breach of the Regulations carries a range of consequences, including enforcement action and in some instances, criminal prosecution. Lack of resourcing and funding has been a long-standing reason as to why regulators scaled back proactive investigations of organisations. However, when this leads to such serious consequences, as in this case, questions must be asked as to whether there are wider problems in how the UK regulates its services, particularly those concerning the most vulnerable in our society.
Whilst a recent Ofsted report considers the challenges posed by Covid-19 to providers’ ability to recruit and retain staff, it is notable that Ofsted inspections of some of Calcot Services premises during the pandemic did not uncover serious issues.
The CQC has announced a new inspection framework, with two important changes relating to the nature and timing of inspections. Firstly, the CQC will move away from inspections alone and collect evidence on an ongoing basis, allowing them to update ratings at any time and helping them respond more flexibly to changes in risk. They will also use a range of information to assess providers flexibly and frequently.
Whilst there are obvious benefits to this change, in particular gathering evidence from a range of sources, the CQC have indicated a move away from site visits, making better use of digital platforms and remote inspections as proved successful in the pandemic. Whilst the pandemic might have necessitated remote assessments, there is a risk that the CQC may become too reliant on them, limiting the ability for inspectors to ‘see’ how services are run for themselves. Whilst administration is an important part of care services, they are by their very nature, a practical, hands-on kind of service, and demand a similarly hand-on approach by their regulators.
Currently, the frequency of inspections depends upon the care service’s existing rating. If the latest report finds the service to be inadequate, the CQC will revisit in 6 months. In contrast, if the CQC finds a service rates good or outstanding, their next inspection will be within 5 years. The length of time between visits raises obvious questions around the CQC’s proper regulation of services, given that some services will go up to 5 years without an inspection. With the new framework, assessments will no longer be tied to set dates or driven by a previous rating. This will allow the CQC to base their inspections on a rolling assessment of quality and risk, preventing services from getting complacent and allowing the CQC to inspect more regularly where needed. It will be interesting to observe how this translates in practice and if we see an increase in the number of on-site inspections, as well as a bigger mixture of arranged and unannounced inspections.
Although these are moves in the right direction, ultimately there is no avoiding the fact that the CQC failed to uncover serious, ongoing issues in an inspection. This raises important questions about whether inspectors are casting a sufficiently inquisitive eye and whether their powers are sufficient to enable proper interrogation. We are seeing an increase in the use of alternative forms of enforcement action in other regulatory arenas, such as Notices of Contravention resulting in fee recovery within health & safety and enforcement undertakings for environmental breaches. Perhaps there is the need for the regulators for care and children’s services to be similarly armed with the ability to impose more serious sanctions, including the ability to prosecute individual directors for failings which are attributable to their consent, connivance or neglect.
Finally, the question must be asked whether there is appropriate liaison between regulators with interrelated regulatory responsibility, such as where services are regulated by both the CQC and Ofsted. There is obvious strength in having two regulators inputting on service but the real value comes from there being good communication and sufficient sharing of information where appropriate.
The Department for Education has responded in respect of Calcot, highlighting the fact that there is an ongoing national review by the Child Safeguarding Practice Review Panel into safeguarding children with disabilities and complex health needs in residential settings. This is clearly to be welcomed, but such reviews should additionally seek to formulate a coordinated regulatory approach in order to deliver value and reassurance to service users and their families.
We at Ashfords are here to help. If you would like more information in relation to this or any other regulatory risk topic, please contact our Risk and Regulation team for specialist legal advice.
[1] Calcot Services for Children Limited - Investigation of Purely House (October 2018) – pg.2
[2] Ibid.
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