CQC Trends and social care funding - a Legal Perspective

In our Autumn 2022 Newsletter Carl May-Smith, Partner at Browne Jacobson, gave his analysis of trends in Care Quality Commission inspections and his thoughts on its new Framework, due to be introduced in January 2023. Here he shares his thoughts on CQC prosecutions and social care funding.

Although anecdotal, it appears to us that there is a further increase in CQC prosecution activity. Many of the prosecutions in 2021 and 2022 have focused on NHS Trusts, but it is inevitable that any such trend will also affect independent providers.

One factor that may be driving an increase in criminal investigations is an apparent focus on inquest outcomes. Providers should be prepared to face an investigation where a coroner finds that neglect played a part in a death or where a report to prevent further deaths is issued.

Fines for these offences are increasing too. Two NHS Trusts have recently been fined £1.3m, in relation to two patient deaths, and £700,000, in relation to one death, respectively. These fines took account of the fines reduction of up to 50% available to public bodies. In June 2022 an independent care home provider was fined £1.5m following a CQC prosecution relating to a resident’s death in May 2018.

Providers and investors also need to be aware of how long CQC criminal investigations go on. It remains the case that the vast majority, if not all, CQC prosecution decisions are made nearly three years after the events they relate to. In our experience there are often long periods during investigations, sometimes well over a year, where providers hear nothing and may assume that the risk of prosecution has gone away.

Away from the CQC, another key development coming in 2023 are social care funding reforms. The greatest impact is likely to be seen in the care home sector and I wanted to highlight one element for providers of such services – the ‘fair cost of care’ reforms.

The Government has promised that, from October 2023, there will be an end to the cross-subsidisation of local authority funded care home places by the charging of much higher rates by self-funding residents. In doing so they have acknowledged what many providers have said for years, which is that local authority rates are often below the real cost of providing care.

The Government intend to achieve this by allowing self-funding care home residents to arrange their care through their local authority, and therefore at the lower rate. The intention behind the reforms is to see everyone paying an even rate for the same care home, sitting somewhere between the current local authority rate and the current self-funded rate.

We will need to wait to see the approach taken by the new Government to these reforms, after the previous incumbents scrapped the national insurance increase intended to fund it. The new Prime Minister has placed great emphasis on the NHS. However, as speculation grows about a possible return to austerity politics, it will reassure some to know that the new Chancellor has previously identified the failure to protect social care services as a key mistake of previous, similar policies.

Other developments to be aware of in 2022 and 2023 include mental health reforms, which may see a push for increased community provision for learning disability and autism, the initial stages of Integrated Care Systems and the much-delayed Liberty Protection Safeguards. Feel free to get in touch to discuss these or any other health and care issues with us.

Carl May-Smith is a partner and barrister specialising in regulatory and criminal law with a particular focus on the health and care sector. Carl provides a broad variety of advice including in respect of health and care standards (CQC and others), health & safety, fire safety, financial regulation and environmental law. His clients include care providers (independent and NHS) as well as investors, businesses and public bodies across a range of sectors.

For investors, Carl provides specialist regulatory due diligence advice most frequently in respect of health and care sector acquisitions. He provides proactive advice and training on topics such as CQC registration and entering the UK healthcare market as well as litigation services, such as defending regulatory enforcement actions or challenging CQC inspection reports. He regularly appears before the criminal courts and tribunals.